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Partisan courts, emergency rules, misinformation and thoughts & prayers

Another round of thoughts and prayers from political leaders. The Supreme Court race turns explicitly partisan. The commissioner of political practices says state leaders need to join the fight against election disinformation. And the health department issues an emergency rule to keep trans Montanans from changing their birth certificates. Listen now on Campaign Beat.

Campaign Beat is Montana Public Radio's weekly political analysis program. Sitting in for host Sally Mauk this week is Montana Public Radio News Director Corin Cates-Carney. This week's Campaign Beat features Lee Newspaper State News Bureau Chief Holly Michels. University of Montana political scientist Rob Saldin is also unable to join us this week. In his place is UM School of Journalism Professor of Political Reporting Lee Banville.

Corin Cates-Carney At least 19 children and two teachers are dead after the latest mass shooting in the United States, this time in Uvalde, Texas. Holly, how are elected officials in Montana's congressional delegation reacting?

Holly Michels At the federal level mostly what we're hearing from our delegation is offering condolences and prayers. Montana Republican Senator Steve Daines said in a statement what happened in Texas was horrific and that he was praying for the families and loved ones of the victims. But he also said more gun restrictions aren't the answer. And he called for something he supported before, which is school hardening. And that's an approach to safening schools by controlling entrances and exits pretty tightly.

From Democratic Senator Jon Tester, he said he wants to see Congress put aside politics right now and pass legislation on background checks and also look at things like red-flag laws which restrict people deemed dangerous from possessing firearms. Tester has also previously supported a debate on background checks for firearms that are sold at gun shows and over the Internet. But I think, you know, given the partisan divide in the Senate right now, even though there's pending legislation that's already cleared the House to do some of the things that Tester supports, there's pretty much no chance that any of it would get through the Senate.

Montana's lone House member, Republican Matt Rosendale, tweeted out that he and his wife were praying for families of victims, but he didn't respond to a request from our reporter Tom Lutey about ways that Congress could take action right now.

Corin Cates-Carney And this is not the first election year when students in the United States have been shot and killed in their classrooms. Lee, how do you see this latest shooting impact campaign trail messaging as we approach the June 7th primary and then when we move on into the general?

Lee Banville I wish I could say something more insightful than 'we've been here before,' and historically, if that's any indication of what to expect this time around, is there will be sort of a flurry of activity on both sides of the debate in regards to gun limitations and gun regulations. And then what has typically happened is that it's been turned into a talking point, but nothing has then been enacted, especially at the federal level. And so while, you know, I would expect to hear candidates on both sides talking about it ahead of the primary, this isn't going to really lead to any kind of major legislation unless something dramatic changes in the national conversation.

Corin Cates-Carney This week, the state health department released an emergency rule that prevents transgender Montanans from changing the gender on their birth certificate. This policy is more restrictive than a law that came out of the last legislative session that also sought to regulate birth certificates of trans Montanans. Holly, why is this rule coming out now and what's the state's reasoning?

Holly Michels So, what happened here is a Billings judge earlier this year blocked enforcement of Senate Bill 280, which is the one you just referenced, Corin, that law that would have required transgender Montanans to undergo gender affirming surgery and then petition a court to be able to update their birth certificate. So the state health department is saying here that this emergency rule is necessary because they'd already gotten rid of a previous administrative rule that allowed people to update their birth certificates just by submitting a form. They're saying they couldn't return to that process and that the judge's order left them with this unclear path, so they ended up doing this emergency rule.

I talked with a lawyer for the ACLU previously who said it's pretty standard that it's understood this judge's order just requires a return to the status quo, which is how things stood before that new law was passed and enacted, which would be that form.

We've heard criticism from Democrats who are on an interim legislative committee that has some oversight over the state health department say that they don't believe the department's actions here really meet all the requirements for issuing an emergency rule. You know, emergency rules can be done with less process or notification, they don't have the same type of public hearing things. And Democrats are saying that this really doesn't fit the bill for what an emergency rule is.

Corin Cates-Carney Holly, you mentioned speaking with the attorney for the ACLU. Here's Akilah Lane, that attorney from the ACLU of Montana. Here's what they had to say about the state's ruling.

"We think that this new rule really explicitly shows the state's true color that these laws and regulations are intended to harm transgender Montanans, and that's who is targeted."

Corin Cates-Carney Lee, do you have anything you want to add on this?

Lee Banville Well, I mean, I think you do see this as another example of the politicization, specifically transgender issues. This transgender question has become the political stalking horse for the Republican Party as of late, that they really like talking about transgender athletes, transgender birth certificates. I mean, it's sort of this ongoing litany of things that they hit on. I think they see this as either a political message to their base to say that, you know, we're standing by, quote unquote, traditional family values or it's a deeply held belief that these young people shouldn't be allowed to compete in sports, shouldn't be allowed to alter their birth certificates.

Corin Cates-Carney Turning now to the primary race for Montana Supreme Court. The candidates for the Supreme Court have drawn support, including financial backing from political parties before. But this year, we're seeing major endorsements and much of the messaging focused around the primary race is, you know, perceived independence or lack thereof of candidates. How does the nonpartisan-ness of this race compare to years past?

Lee Banville We've never seen a race this partisan. We've certainly seen, and there's always been, this kabuki theater about the nonpartisan nature of the race, because you could look at where donations were coming from. You knew which lawyers and which lawyer groups were backing which candidate. And that sort of gave you an indication of where the person was or who was backing them. But it was never explicit. And this year it is completely explicit. And so I think what that does is it's really changed the dynamic of that race. And I think what you're seeing is some of the candidates seeking to message around that, which is to say, regardless of how you feel about my ruling on X situation, we need a judiciary that's independent. And that has worked in the past if we look back at the Mike Wheat race for Supreme Court where he was able to argue that outside money coming into the race was an effort to subvert the independence of the Montana judiciary. But we're going to have to see if when that money and those endorsements are coming from within Montana and from within the Montana GOP, whether that will actually be as effective an argument or whether it will just feel like it's sort of a counter argument to the Republicans backing a specific candidate.

Corin Cates-Carney What are some of the explicit examples of partisanship you're seeing in this race?

Lee Banville Well, obviously, having one of the candidates get up at a candidate forum and say that Greg Gianforte called me and asked me to run for the Supreme Court, and then instantly the day they announce, simultaneously being endorsed by the governor, the senator and the attorney general of the state is the kind of explicit, partisan endorsements that we've historically not seen in these races. And then we've seen the beginning of a sort of countermovement on the other side by Democrats to organize around the sitting justice, Gustafson. And so what that does is it really sets up this paradigm that Gustafson is a Democrat and that Brown is a Republican, and that's what you're voting for when you vote in this race.

Corin Cates-Carney Holly, help set the stakes for us here. We've seen how the U.S. Supreme Court appointments have become hyperpartisan. Are there cases or issues you've seen drive more of the political interest in Montana's high court that could end up shaping Montana law?

Holly Michels Yeah, to me it looks similar to the federal level that access to abortion is one that's getting people pretty interested in the judiciary here. In Montana, we've got the 1999 Armstrong decision from our state Supreme Court that guarantees the access to pre viability abortions in our state. And that's under challenge right now with the court.

There's also cases like challenges to House Bill 2 from the last legislative session, which expanded where firearms could be carried. I think generally speaking, there's just been a lot of litigation over laws passed from the 2021 Legislature, and many of those might end up at the state Supreme Court.

It's probably important to point out there's two races on the ballot. The one for Seat 2 is the one that's getting the most attention. That's where Republicans have lined up for James Brown against incumbent Ingrid Gustafson. And Mike McMahon is also in that primary.

The other race is getting a lot less attention, I think, that's incumbent Jim Rice, who's running against a Billings attorney. His opponent really hasn't done much in terms of fundraising or campaigning. Though important to point out that it's the primary and both of them are going to make it through. So that could come later. Rice wins. He's already on the court where that seat number two could change the tone there. But out of seven total justices, one vote, you know, I don't know if that would be enough to sway any of these critical decisions that we might see coming. But, you know, like Corin, you said with the federal court appointments, those are all done one by one. So could be a step there. But I think, you know, it's pretty interesting race to be watching for sure.

Since the last time Montanans went to the polls, new voting laws have been passed, challenged in court, blocked and unblocked. MTPR’s Shaylee Ragar and Freddy Monares make sense of it all and answer questions about where and how to cast a ballot in the June 7 primary.

Corin Cates-Carney We have just over a week before primary Election Day, Montana's top political cop recently went before lawmakers and expressed concern about misinformation and disinformation. Jeff Mangan is Montana's commissioner of political practices. It's a nonpartisan position in charge of enforcing ethical campaign and election practices. Here's what he told lawmakers this week about his concerns over misinformation.

"We should be shouting it from the rooftops. You should be telling your election officials they're doing a good job. I believe in our election processes. The secretary of state's office should be telling people that they need to feel confident in our election processes every day."

Corin Cates-Carney Holly, what else stood out to you about Magan's comments this week?

Holly Michels I mean, I think it's pretty stunning. I started this job in late 2015, and, you know, this is something I've just never heard before leading up to an election. And I think it's interesting he's calling on a Republican secretary of state here to take an active role in helping to shoot down these election fraud theories that are entirely unproven. Her office has said that elections are secure, but she hasn't actually come out and said anything counter to what members of her party in the Legislature are saying around the state at these events that are pretty directly furthering unproven claims that the 2020 election was somehow rigged.

You know, we've seen election officials in counties around the state say they've received threatening messages and already had pretty tense confrontations with people. The most recent thing we've seen is this self-described expert in cybersecurity. He's traveled the country and now he's made several stops in Montana in part of furthering election fraud claims and then calling for hand counting ballots. Our reporter Sam Wilson had a pretty in-depth story about all this with context about hand-counted ballots, pointing out from experts who say they're prone to fraud and errors and experts generally think systems in Montana,What we have in place already, is kind of the best thing that you can do, which is machine voting and then double checking those with randomly selected audits that are done by hand.

So, I think it's pretty interesting times. I'm curious about turnout and how this might affect it. We saw a Republican Central Committee in Missoula hold a recount of ballots there, and that was after a further right Republican group has been calling into question the accuracy of elections in Missoula County in 2020. And what the Republican Central Committee was trying to do with that is, say, you can trust this process, please show up and vote in the primary. Don't be deterred. So I wonder if we're going to see any effect on turnout.

Corin Cates-Carney Lee, are you seeing any of this false information, misinformation continue to play out by candidates on the campaign trail?

Lee Banville I think you obviously see the typical political back-and-forth where you accuse somebody of having a certain position or living in California and they counter back. And that's not, I think, what the misinformation that Commissioner Mangan was really focused on. It was really the integrity of the process itself. And so I think that in thinking about the misinformation around the security and stability of our electoral system, what Magan's raising is that not enough is coming from the leaders in Montana to say that Montana's elections are secure, especially, I think, what Holly says about singling out Secretary of State Christy Jacobson for really not specifically taking the lead on this and sort of saying, no, our elections are fair and there wasn't any problem. She's been largely silent. I mean, she mentions it kind of, she says that they're secure, she compliments local officials when she goes and visits with them. But she doesn't come out particularly strongly and say you can trust your vote in Montana. And it's it's interesting because I think we really won't know until the general election what's happened in terms of, you know, do Republicans see this as a talking point about election security, or do they see it as my vote won't count anyway, so I'm not going to bother to cast it?

Corin Cates-Carney That's all we have time for this week. Holly and Lee, thank you.

Campaign Beat is Montana Public Radio's weekly political analysis program. Sitting in for host Sally Mauk this week is Montana Public Radio News Director Corin Cates-Carney. This week's Campaign Beat features Lee Newspaper State News Bureau Chief Holly Michels. University of Montana political scientist Rob Saldin is also unable to join us this week. In his place is UM School of Journalism Professor of Political Reporting Lee Banville.

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Retired in 2014 but still a presence at MTPR, Sally Mauk is a University of Kansas graduate and former wilderness ranger who has reported on everything from the Legislature to forest fires.
University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
Lee Newspapers State News Bureau Chief Holly Michels appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
Corin Cates-Carney is the news director at Montana Public Radio. He joined MTPR in 2015 and is a graduate of the University of Montana School of Journalism.