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Lawsuits over voting restrictions are getting expensive; Republicans want to talk national issues

Rep. Rosendale and Sen. Daines tell President Biden they don't want him to do something he isn't doing. The Montana Supreme Court nixes — for now — new voting restriction laws, while the bill for litigation tops one million dollars. And congressional candidate Ryan Zinke goes after his opponent Monica Tranel in a new ad also critical of the president.

Campaign Beat is hosted by Sally Mauk and features Lee Newspapers State News Bureau Chief Holly Michels and Rob Saldin of the University of Montana's Mansfield Center and Political Science Department. Here's Sally.

Sally Mauk Congressman Matt Rosendale and Senator Steve Daines have cosigned a letter to President Biden this week saying they oppose the administration's sending migrants from the southern border to Montana. And as far as I know, there are currently no migrants being sent to Montana, and the only ones I know of being sent north are being sent by two Republican governors, Abbott of Texas and DeSantis of Florida.

Rob Saldin Yeah Sally, it seems pretty disingenuous. It's not even entirely clear what they're talking about, but I think what their explanation would be are some news stories that are out there reporting that some officials at the Department of Homeland Security have floated the idea of flying some immigrants to other parts of the country for the purpose of processing them, because resources at the southern border are stretched thin. Now, to my knowledge, there's no evidence that Biden is considering this. And in fact, in their letter, Daines and Rosendale acknowledged that they don't know whether this is a serious thing or not. But be that as it may, I think that's what they would say that they're referring to. Sally, of course, you're right. When we're talking about flying migrants to other places, what obviously is top of mind are the governors of Florida and Texas who've been sending people to blue enclaves as kind of a publicity stunt way to try to stick it to Biden, with the Martha's Vineyard incident last week being just the most recent example. So to send this letter to the White House a few days after that and to issue a press release to draw attention to it, it smacks of politics, obviously, with a kind of added dose of gaslighting.

However, on that level, this probably fits well with the strategy we're seeing from Republicans across the country. Immigration is just a huge issue for their base. This moves people. It gets them riled up, and that's not entirely disingenuous. There is a legitimate reason to be concerned with the situation at the border, and the administration hasn't always been forthright about that. So for all those reasons, this issue is one that works well for Republicans. And that's why Republicans are hitting it so hard in the lead up to the election.

Sally Mauk And they are hitting it hard, that's for sure.

Holly, the Montana Supreme Court this week upheld a lower court decision that has put on hold Republican-passed laws that would end same-day voter registration and require stricter voter I.D. It's not the final word on these laws, but it does keep them from going into effect for now.

Holly Michels Yeah, this is a pretty complex legal path we're on, but like you said, this is not the last. We're going to hear the merits of the laws themselves. We don't have any court decision on that yet. But as of now with the state Supreme Court, just did is put on hold these laws that would apply same-day voter registration and wouldn't have let college students vote with their school photo ID.

This whole thing comes from a lawsuit that was consolidated from several separate lawsuits that were filed by groups representing younger voters; coalition of Native American advocacy groups and the Montana Democratic Party. And the laws they were challenging were passed by Republican legislators in 2021. In supporting them, GOP lawmakers said that election workers were overwhelmed working on same-day registrations when they're also trying to conduct the election, and also raised concerns about election security. And people use certain kinds of IDs to vote. But at a hearing back in April — and that's when Billings Judge Michael Moses issued this temporary injunction to stop these laws — At that we heard testimony saying they would have a pretty big impact on younger voters who use same day registration a lot more frequently than older voters and college students who use those photo IDs to vote. And then people talked about Native Americans have a hard time if you need to make maybe two separate trips, one to register to vote, the other to vote. Where you live might be a long way from the elections office. That it's hard to get time off work, all that sort of stuff.

In that hearing, we also heard testimony just about how rare voter fraud is in Montana, and they talked about there's only been a handful of cases over the last two decades. And over that time period that's out more than 8 million ballots cast. So, Moses issued this injunction. Secretary of state, who's the sole defendant in the lawsuit, asked the state Supreme Court to reinstate these laws before the June primary, and the court actually did. So they were in place for that one. For this one it's hard to say. Moses had said back in the spring that he intended to issue an order over the actual merits of the laws themselves sometime before this November election, and maybe with enough time to allow for an appeal which would send the case back up to the Supreme Court. And it's just about October, we're getting really close to that deadline. So unless we see that soon, I think it's going to be pretty tight to see if that comes out or not.

Sally Mauk Meanwhile, Holly, it has cost the state well over $1,000,000 to defend these laws. And legislators were warned ahead of time that these laws might end up in court and they might not be upheld. And they went ahead anyway. And here we are.


Holly Michels Yeah. You know, back when the Legislature was passing these bills, like you said, with those warnings, they ended up appropriating the Secretary of State's office money to defend themselves in anticipation of litigation. They only appropriated $100,000, so that's been pretty dramatically short of the cost so far. And like we just talked about these cases, they're still progressing. You know, there's lots of appeals that could still happen. And then there's also you legal fees if the Secretary of State's office were to not win. In this case, defendants could ask them to pay legal fees. So there is for sure more coming as this case progresses and maybe much more.

Interesting, too, there's a transparency website that shows state spending and that shows that all of this money spent in the last fiscal year, $1.2 million of it, has been paid out to Crowley Fleck, which is a private law firm. The attorney general's office can represent state entities in this type of stuff, and they are listed on some of these legal filings. But probably worth noting that this is also, you know, payments going to an outside law firm.

Sally Mauk Worth noting for sure.

Rob, the state Supreme Court rulings like the one we've been discussing show how crucial the court is to policies being implemented or not. And that's one reason the court race between incumbent Justice Ingrid Gustafson and challenger James Brown is getting so much attention. Both have campaign ads on TV. And here's one from Gustafson.

[Gustafson] "My husband and children and I have played, coached and supported soccer throughout Montana for decades. As a referee, I'm tough and I'm fair. Just as there's no room for politics on the pitch, there's no room for politics in the courtroom. I have nearly 20 years of experience serving Montanans as a judge. Now I'm asking for your vote to reelect me. Please vote for me. Ingrid Gustafson, Montana Supreme Court."

Sally Mauk And Rob, we see Gustafson in a soccer referee uniform and then in her judicial robes. And she's talking about, "There is no room for politics on the court."

Rob Saldin Yeah, right. Sally, I sometimes find these ads from Supreme Court candidates to be a little awkward. These folks usually aren't the kind of polished politicians that we're used to seeing in campaign ads. So their spots sometimes have a bit of a stilted feel, and I think there's a bit of that here. But the basic message is solid in that it speaks to what we expect, or at least what we hope for from judges: that they'll be impartial, that they won't be political, they'll just call balls and strikes, as John Roberts memorably put it in his confirmation hearings to the U.S. Supreme Court. I note, too, that Gustafson goes out of her way to say that she's been doing this for decades, that she's the incumbent, that she's running for reelection, right? That's the ground you want to be fighting on if you're an incumbent justice, because judges usually get reelected. Most voters don't know who these people are. And so they tend to figure, well, if I haven't heard anything terrible about them, they must be doing an okay job. So I think Gustafson wants this to be a referendum on her as a long time judge who's a straight shooter. If that's how voters make their decision, she's probably in good shape. If, on the other hand, it turns into a Democrat Republican thing, that could be a different story.

Sally Mauk And her ad, I think is trying to also address the label her opponent, James Brown,has put on her as a "liberal activist." She's trying to definitely respond to that, I think.

Rob Saldin Yeah, for sure. And, you know, maybe just a word on the broader context here. You know, Republicans are really frustrated with the Supreme Court because, as Holly explained, it kind of keeps striking down the laws that they pass on the grounds that they violate the state constitution. And there are a whole bunch of other issues here, too, not just the voting stuff. You know, perhaps most notably, abortion and how the court has interpreted the Constitution's explicit guarantee to a right to privacy. Well Republicans look at all this and they're a little exasperated. After all, they've got these overwhelming margins in both the House and the Senate. Now, finally, after 16 years, they also have a GOP governor, but they still can't get some key parts of their agenda passed. So if you don't like these court rulings, there are really only a couple of things you can do. You can try to amend parts of the Constitution or throw it out entirely and come up with a new one. Or you can try to get different justices on the court and hope they find a way to explain how actually these things are constitutional. So what's going on here is that Republicans are exploring both of these routes and this election between Gustafson and Brown has kind of become ground zero for that latter strategy of trying to get different justices on the court. And, you know, one really notable thing here is that all of the prominent Republicans in the state have lined up behind Brown, very prominently supporting him.

Sally Mauk Holly, Republican Ryan Zinke has a new ad attacking his opponent, Democrat Monica Tranel. And here's that ad:.

[Narrator] "Monica Tranel and Joe Biden's misnamed Inflation Reduction Act is outrageous. $1,000,000,000,000 in new taxes, spiraling inflation, an IRS so massive it would be the largest city in Montana, amnesty for millions of illegal immigrants.

[Tranel's voice] "That's an awesome act.".

[Narrator] "Awesome, Monica?

"Ryan Zinke will help stop your nonsense. Choose sanity. A life we can afford. Choose Zinke."

Rob Saldin [Zinke] "I'm Ryan Zinke, and I approve this message."

Sally Mauk And this ad concludes, Holly, with Zinke in a hardhat, walking through a house under construction and then raising a flag.

Holly Michels Yeah, this is a pretty interesting ad, I think, compared to others that we've seen from Zinke this cycle. He's doing a lot to paint Tranel as sort of a stand-in for Joe Biden. It's even visual, if you watch the ad, doing a mash up of their faces together. It's calling the inflation reduction act Biden and Tranel's legislation. Something that stands out to me is, past ads from Zinke, they really — like the imagery you just described of him at the end — they've really more focused on that, talking about Ryan Zinke, talking about his experience. Getting into Joe Biden a little bit. But this one really goes after Tranel specifically in ways I think we haven't seen a lot of his other ads this race do. Tranel also, just that visual difference. She's in black and white. And then you do have Zinke in color and hardhat, a shirt with a flag on it, putting a flag on the flagpole, all of that.

We also hear him, something I think that stood out to me, talking about "sanity," stopping nonsense, sounds a lot to me, like saying, you know, the Trump slogan of Making America Great Again, but without actually saying it, then you kind of wonder if maybe saying MAGA has gotten a little bit more negative associations recently. Looking at the speech Joe Biden gave in Philadelphia recently where he specifically called out MAGA Republicans. So, I think this is a way of putting out that message without that specific phrase. But I think Rob about this last week; Trump has endorsed Zinke is still very, very popular in Montana. So, I don't see much of a reason to maybe move away from that. But this also fits in with GOP nationally trying to paint Democrats as crazed liberals or Biden specifically, or taking digs at his age there. So it's interesting, and I think it really brings Tranel out a lot more than the other ones and seems to kind of be the kind of thing you'd expect to see as we're getting close to the election.

Sally Mauk Well, Rob, Holly's point that, you know, a lot of Republicans are trying to tie their campaigns to attacks on what they believe is an unpopular president.

Rob Saldin Yeah, exactly, Sally. I mean, to the extent they can keep the focus on national issues, nationalize this race, that works to their advantage. And Tranel, on the other hand, probably wants to de-emphasize the stuff back in Washington and keep the focus on local stuff, Montana stuff, and move away from some of these national issues.

Sally Mauk Well, we're just six weeks out, about, until the election and we'll continue talking about it next week. Rob and Holly, thanks.

Campaign Beat is Montana Public Radio's weekly political analysis program. It's hosted by Sally Mauk and features Lee Newspapers State News Bureau Chief Holly Michels and Rob Saldin of the University of Montana’s Mansfield Center and Political Science Department.

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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'.
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