Democracy (with an asterisk)

Montana Supreme Court ruling understands the power of the people to make their own decisions

September 15, 2022 4:04 am

The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

Today, in honor of Democracy Day, as an initiative the Daily Montanan has joined along with our other outlets throughout the States Newsroom network, we’re sharing stories that shed light on how democracy is doing.

Granted, it’s been a tough couple of years for our democracy, no matter which side of the political spectrum you tilt toward. Allegedly stolen documents, allegedly stolen elections, an insurrection at the Capitol amidst a pandemic and shaky economy.

Yet 2022 is also the 50th anniversary of the Montana Constitution, the second such document in our state’s history. And while it’s tempting to point out nearly two dozen lawsuits that have spun off of legislation passed by the most recent Legislature as an example of democracy in decay, there’s plenty of evidence to demonstrate its strength, wisdom and ability to persevere even through today’s choppy waters.

One of the recent Montana Supreme Court decisions that may have escaped the limelight came about a month ago when the justices ruled that Supreme Court justices would continue to be elected at-large, and not by geographic district, like the state’s Public Service Commission.

This isn’t the first time this battle has been fought recently. One of the hallmarks of democracy is the ability to campaign, lobby and fight for an idea even if it’s defeated again and again.

Yet, the idea’s death at the Supreme Court is also proof of how well our state runs despite the seemingly growing chasms that exist between the political parties.

The concept to elect Supreme Court justices in a district-by-district fashion instead of statewide is one that has been floated several times, but it continues to run into the state’s constitution.

Despite the scare tactics that Montana leaders like Attorney General Austin Knudsen have tried to use, frightening the public into believing that the courts, including the state’s highest and only appellate court, are packed with over-active, crusading zealots, the justices methodically and clinically discuss the issue in the 36-page ruling.

Their decision is both a solid affirmation of the constitution and a delightful discussion of democratic principles.

The idea behind electing justices by geographic or political district is underpinned by the notion that people closer to these geographic areas have a better understanding of the issues because they’re closer to home, and would be better equipped to represent residents on the bench. On its face, it’s a concept that resonates with many of us: The notion that we are served better by those close to us.

And while there’s much truth to that theory when applied to the political or geographic arena – that is, it makes sense in Congress where Montana’s needs and ideas may be much different than, say, New Jersey’s – it’s actually a troubling concept when applied to the bench.

Justice and courts are predicated on the idea that laws in one part of the state are applied and mean the same thing in all corners of the state.

Electing justices by geographic district would only seem to encourage tribalism and more political gamesmanship. It also seems to hem in qualified attorneys who would otherwise be able to run for a seat by limiting one attorney from a region to serve at any given time, something that isn’t even required of candidates running for state legislature, who can run even if they live outside a particular geographic area.

Still, in considering the issue of whether Supreme Court justices should be elected at-large, the high court concluded the Constitution spoke conclusively and authoritatively on it: They must be elected at-large* (yes, with an asterisk).

Chief Justice Mike McGrath wrote for the majority of court striking down House Bill 325, which would have made Supreme Court justices elected by district.

“Contrary to the spirit of protecting the right of all Montanans to vote, (it would) deny each Montanan their right to vote in the election of six out of the seven justices on their state Supreme Court and in the selection of the chief justice,” the opinion said. “The implications are not merely philosophical. The Supreme Court has statewide appellate jurisdiction, and general supervisory control over ‘all other courts.’ The requirements and protections of the Constitution and the law do not vary from one county or district to another.”

And yet, the court’s decision was a resounding victory for both sides, even though those on the losing side may still be stinging.

While the court affirmed that the state’s Constitution properly requires justices to be selected at-large by all voters in the state, the ruling also made clear that because of the very nature of democracy itself, the Montana Supreme Court justices could be elected by districts.

Enter the asterisk.

The ruling also said that changes as substantial as altering the Supreme Court cannot necessarily be done by the Legislature alone – it must be done by the power of the people, and that power comes from Montana citizens amending their own constitution. In other words: If Montana wants to change the complexion of the Supreme Court, it must first change its own constitution. Its ruling demonstrated neither lawmakers or people who don black robes have the final say.

Really, the Supreme Court’s ruling is just a reminder of the still radical message of ’72: Power to the people.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.