Montana AG decision could see influential GOP lawmakers removed from the 2026 ballot

A legal opinion issued this week by the Montana attorney general could force several incumbent lawmakers off the general election ballot, spurring at least two legislators to begin weighing their legal options.

Montana Attorney General Austin Knudsen’s opinion, which is legally binding, could have major implications for the 2027 Legislature, potentially casting longtime state Rep. Llew Jones, R-Conrad, and House Majority Leader Steve Fitzpatrick, R-Great Falls, off the ballot when the Secretary of State’s Office certifies it later this week.

The opinion undoes a 14-year precedent that allowed legislative candidates to move between chambers every eight years without running afoul of constitutional term limits.

Jones, a powerful state lawmaker first elected in 2004 who leads a mostly moderate faction of GOP legislators known as the “Solutions Caucus,” said Wednesday the opinion was merely the latest in a string of attempts by hardline conservatives to defeat him. Jones won his primary election by a razor-thin 250-vote margin despite an unprecedented wave of campaign spending against him by national groups and the Montana Republican Party laboring to convince voters that he was unworthy of the GOP label.

“They’re going to come at me with anything they can find because so far they haven’t found a fair way to debate or win another way, so without a doubt I will remain under siege,” Jones told the Montana State News Bureau on Wednesday.

Jones and Fitzpatrick, whose name could also be wiped from the ballot under the AG opinion, are already planning to fight back with a legal argument of their own.

“There’s going to be a lawsuit. Don’t worry,” Fitzpatrick said.

A spokesperson for the attorney general declined to comment, saying the opinion speaks for itself.

The Attorney General’s Opinion came at the request of Senate President Matt Regier, a chief adversary of Jones at the Montana Capitol, and examined the constitutional rules regarding when someone can be certified for the ballot ahead of Election Day.

Regier took issue with Jones’ candidacy for the state Senate, contending Jones should be ineligible for election to the upper chamber because he was a senator from 2011 through 2019. Montana’s constitution bars a candidate for certain offices from the ballot if they’ve already served eight years in that office during the previous 16 years, but conflicting legal opinions over the last 30 years left the door open for lawmakers, like Jones and others, to effectively bypass this restriction by spending eight years in one chamber and eight years in the other before running again for the original office.

State Sen. Johnathan Windy Boy, D-Box Elder, for example, has been in the Legislature every year since 2003. He began that year in the House, serving through 2009 before he went to the Senate from 2009 until 2016. He was elected to return to the House in 2017, and after another eight-year term limit in that chamber he is now back in the Senate. (Windy Boy is not up for reelection this year.)

That framework was essentially allowed under a 2012 Attorney General’s Opinion issued by then-AG Steve Bullock, a Democrat, and it has been referred to as the “8-year break in service” rule.

Knudsen’s opinion this week overturned Bullock’s opinion and restored an earlier attorney general opinion from the 1990s, which determined that at the time of Election Day, a candidate at the end of an eight-year term in the House will still have been in the Senate within the 16-year window, and therefore ineligible to run for the Senate again.

Knudsen declined to issue an opinion on any current candidate’s eligibility on the ballot, including Jones, whom Regier named in his request to the attorney general on July 9.

But Knudsen did write that the Montana Constitution directs Montana Secretary of State Christi Jacobsen to calculate candidates’ time in office under the framework in his opinion when certifying that candidates’ name to appear on the ballot. In effect, it states Jacobsen would be violating the constitution if she allowed Jones’ name to appear on the general election ballot.

The Montana State News Bureau asked a spokesperson for Jacobsen on Wednesday if her office interpreted the opinion to mean Jacobsen must remove impacted candidates from the ballot. 

"If that’s what the Attorney General is forcing the Secretary to do …," Richie Melby, Jacobsen's communications director, replied. 

Jacobsen’s office must certify the ballot by Aug. 19, only a week away. The opinion does not go into effect until it is published in the Montana Administrative Rules; Melby said that would not take place until Friday.

Knudsen noted in the opinion that the constitutional provision in question applies only to a candidate’s access to the ballot; it does not, Knudsen said, prevent someone from being elected as a write-in candidate.

Political gamesmanship

That his critics from the right would take another stab at undermining his candidacy came as no surprise to Jones, who endured one of this cycle’s most bitter primary challenges; still, Jones conceded that this new ballot access argument was “one of their better thought-out ploys.”

“They spent unprecedented amounts of money trying to beat me at the ballot box and they couldn’t do it,” Jones said. “Now they want the Attorney General to hand them a legal opinion that does what they couldn’t get the voters to do.”

Fitzpatrick, who has served in the Legislature since 2011 and believes his own re-election bid is jeopardized by the opinion, said Regier’s request was nothing more than a political tantrum on the heels of a bruising loss in a primary the state GOP poured resources into winning.

“Llew Jones went out and won his election fair and square,” Fitzpatrick said. “For Matt Regier, because he lost the race, to go cry to Austin Knudsen is absolutely outrageous. It is the ultimate loser move.”

The timing of this effort reeks of politics, according to Fitzpatrick. Regier’s request for the legal opinion came after Jones had won his primary, and the ruling from Knudsen’s office leaves only a week before ballots must be certified.

“If they didn’t want us on the ballot, they needed to do this a long time ago. But to do this seven days before ballot certification — it’s outrageous,” Fitzpatrick said.

Regier did not respond to multiple requests for comment Wednesday afternoon.

Should the opinion stand, the Montana Republican Party would be responsible for naming a replacement to the ticket. A leading candidate for that spot could be Rep. Zack Wirth, the Wolf Creek Republican who narrowly lost to Jones in the Senate primary.

Wirth told the Montana State News Bureau that he hadn’t heard of any efforts to get Jones blocked from the ballot, but that he’d be open to jumping into the race if asked to by the party.

“I would certainly consider it,” Wirth said. “But I have no texts, no messages, nothing. Maybe they have somebody else in mind and I don’t know that.”

If this opinion spells the end of Jones’ storied presence at the Capitol, it wouldn’t be the first time he’d considered how this chapter will close. But it’s not how he’d like things to end.

“There’s a window of time, and I’m not a kid, and my window is closing anyway. I came back to finish out some of the things I want to get done,” Jones said. “I had already been pondering that thought that I need a replacement. That said, I’d like to do it on my terms instead of having someone try to find a sneaky way to assassinate me.”