Guardrails on Direct Democracy: Nondelegation Constraints on Citizen Initiatives After Montenegro v. Fontes

By Armando Montero. 

Article IV, Part 1, Section 1 of the Arizona Constitution states: “The legislative authority of the state shall be vested in the legislature . . . but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independent of the legislature.” Since statehood, Arizonans have used the citizens’ initiative process to legislate where the Arizona State Legislature has refused to act. This includes initiatives to set minimum wages, expand Medicaid, fund public schools, and regulate campaign finance. 

Yet, as political polarization continues to rise, the Legislature has tightened procedural and substantive limits on initiatives, from stricter signature requirements to heightened scrutiny of single-subject clauses. These restrictions have made it harder for initiatives to qualify for the ballot and remain in effect, even if passed by a majority of Arizona citizens.

The increased scrutiny of citizen initiatives has recently drawn the attention of the Arizona Supreme Court in the context of nondelegation and standing of the Legislature itself to challenge these laws. Many citizen initiatives in Arizona rely on empowering state agencies and commissions to act to achieve their legislative goals.

In 2025, the Arizona Supreme Court’s decision in Montenegro v. Fontes opened new doors on this constitutional front. The court discussed whether the people themselves, when legislating by initiative, are bound by the non-delegation doctrine, and crucially, whether the Legislature has standing to intervene when it believes that an initiative oversteps that boundary. In a 5-2 decision, the court held that the Legislature has standing to challenge a law passed via citizen initiative by asserting a separation of powers claim. However, individual legislators do not have standing to sue unless authorized to do so on behalf of the Legislature.

The Nondelegation Doctrine: A Primer

The nondelegation doctrine flows from the separation of powers principle under the Arizona Constitution, which is expressly enumerated, unlike its federal counterpart. This doctrine stipulates that the Legislature cannot delegate its lawmaking power and authority. It regulates both the power that may be delegated and the manner in which it was delegated. To delegate authority to implement certain statutes, the Legislature must provide an “intelligible principle” to guide the agency’s decision-making.

While Arizona courts have historically been more deferential in applying the nondelegation doctrine, the Arizona Supreme Court clarified the standard in Roberts v. State by holding that state agencies cannot make inherently legislative major public policy decisions and that any such delegations must be sufficiently articulated to allow an agency to understand the bounds of its delegated authority.

The distinguishing factor in Montenegro and Roberts is that the challenged law was not enacted by the Legislature, but rather a citizen initiative. The question became whether citizens, acting in their legislative capacity, are subject to the same nondelegation constraints. If so, who has the ability to challenge these laws?

Proposition 211 and the “Voters’ Right to Know”

The controversy first arose when voters passed Proposition 211, the “Voters’ Right to Know Act,” in 2022. The initiative added a new section to Title 16 of the Arizona Revised Statutes by seeking to expand transparency in campaign finance. It requires disclosure of certain “dark money” donors, defined as any group that spends more than $50,000 on statewide races or $25,000 on non-statewide races in political advertising and related spending. The initiative also requires such groups that receive more than $5,000 to disclose the source of those funds. 

To enforce the law, Prop. 211 vested broad rulemaking and enforcement authority to the Citizens Clean Elections Commission (CCEC), a state agency. Notably, it states that “[t]he Commission’s rules and any Commission enforcement actions pursuant to this chapter are not subject to the approval of or any prohibition or limit imposed by any other executive or legislative government body or official.” Additionally, the Act states, “[t]o the extent the provisions of [Prop. 211] conflict with any state law, [Prop. 211] governs.”

These provisions led then-Speaker of the State House of Representatives Ben Toma and Senate President Warren Petersen (“the Leaders”) to challenge the law, claiming it unconstitutionally delegated legislative power to the CCEC, and therefore violating the separation of powers principle. The Leaders moved for a preliminary injunction, which the Maricopa County Superior Court denied because the Commission had not yet taken any enforcement action and held the Legislature had not suffered specific injury necessary for standing. The Court of Appeals later held that the Leaders did indeed lack standing to challenge certain provisions of the Act.

On appeal, the Arizona Supreme Court held that the Leaders do have standing to challenge the law despite any enforcement action not being taken by the CCEC. The court expressly stated that the nondelegation analysis applies evenly to all promulgated laws regardless of whether they originated in the Legislature or by citizen initiative. It therefore distinguished that the injury the Leaders faced was not the exercise of such delegated authority, but the delegation of the authority itself. Since the Leaders have standing to challenge laws that inflict institutional injury, they held they had standing to challenge this initiative, deferring to the trial court to determine the nondelegation question.

Montenegro unquestionably injects Arizona’s separation of powers jurisprudence into the realm of direct democracy. Effectively, the court treated citizens, when legislating through initiative, as standing in the shoes of the Legislature for constitutional purposes. The opinion highlights that the Legislature not only has the right to defend against overreach from other co-equal branches of government, but also from citizens themselves acting on their behalf.

What does the Logic of Montenegro Mean for Past and Future Citizen Initiatives?

Notably, the court did not resolve the underlying nondelegation question, leaving the fate of Prop. 211 and other statutes passed through citizen initiative in the balance. As important public policy questions continue to reach the ballot through citizen initiatives in an increasingly polarized environment, it is unclear what the implications of this decision will be. Many unanswered questions and lines are yet to be drawn, such as what distinguishes a political question from a constitutional one in the realm of citizen initiatives.

If Montenegro’s reasoning holds, many initiatives passed over the years may now face delegation challenges the majority party in the Legislature opposes, putting those measures at risk. Additionally, the opinion requires that future initiatives craft enforcement mechanisms with clear standards and include some oversight and accountability. Such stringent requirements could chill future ambitious policy efforts by citizen initiative.

While its impact is yet to be seen, Montenegro leaves an interesting tension between preserving constitutional structure and frustrating voter sovereignty.