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Voting laws blocked; Abortion amendment amended; Arntzen rebuked again

Republican lawmakers aren't happy with the State Supreme Court's voting rights ruling. Abortion rights activists aren't happy with Attorney General Knudsen's changes to a proposed constitutional amendment. The Board of Public Education isn't happy with School Superintendent Elsie Arntzen's job performance.

Campaign Beat is MTPR's weekly political analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Sitting in this week for Rob is University of Montana School of Journalism Professor of Political Reporting, Lee Banville. Tune in on-air Saturdays at 9:45 a.m. Subscribe wherever you get your podcasts.

Sally Mauk: Holly, the state Supreme Court this week said that four new laws aimed at tightening restrictions on voting are unconstitutional, and they're adding to the growing list of laws passed by the Legislature that the courts have struck down. 

Holly Michels: Yeah, this ruling has been anticipated for some time now, and it's a pretty massive deal. It signals the end of the road for four laws passed in the 2021 legislative session that had been blocked — first by a district court ruling — since 2022.

Four of these laws, they were passed with Republican backing, supported by Republican Secretary of State Christi Jacobsen as well. They would have done away with same day voter registration, added to voter identification requirements, banned paid ballot collection by third parties, and blocked election officials from mailing ballots to 17-year-olds who would turn 18 and then be old enough to vote on Election Day.

These laws were challenged in court pretty shortly after their passage by a group of plaintiffs that included the state Democratic Party, Western Native Voice, Montana Youth Action, several tribes in Montana, and other similar groups. This ruling from the state Supreme Court was split, with four of the judges in the majority.

In the order, which was authored by Chief Justice Mike McGrath, he wrote that eliminating Election Day registration would interfere with the right to vote and was not the least onerous path the state could take to ease some of the concerns that election workers raised about the workload of registration on Election Day.

For the law that would have not let students use their IDs to vote, McGrath wrote that that didn't have any legitimate purpose to it. The court did allow for a ban on paying ballot collectors by the number of ballots they collected, but it otherwise allowed use of paid ballot collection. And that's something that tribes in Montana have argued is a pretty big deal to people who live in rural areas, reservation areas who often times struggle to get to a place to return their ballot or don't have reliable mail service.

The dissenting justices in this case, they argue that it's mostly the Legislature's right to craft laws that determine how elections work. And it's not the place for courts to, as Justice Sandefur wrote, "act as a super-legislature" and second guess lawmakers. After this ruling came out, we saw plaintiffs pretty happily welcome it and the Secretary of State's office sent a pretty strongly worded statement saying they were devastated by the decision.

Sally Mauk: Well, Lee, Montana's not alone in these efforts to restrict voting. Many other states have attempted this as well under the guise of preventing voter fraud. But Democrats like Lieutenant Governor candidate Raph Graybill, who was involved in the Montana cases, they see this as a winning issue for them. Here's what he had to say in a recent video.

Raph Graybill: These laws were cruel. They were wrong. And it was a well-reasoned decision to say this violates the right to vote of Montana — no go. But remember, who signed these laws? Who championed them? Greg Gianforte.

Sally Mauk: Lee, Graybill thinks Montanans are going to agree that these laws were a bad idea.

Lee Banville Well, I mean, we'll have to see. First of all, it's important to understand that, you know, as Holly pointed out, it wasn't a unanimous decision. It was a pretty narrow decision. It was a closely fought sort of legal battle on the Supreme Court about this. But I think it does speak to an effort by Mr. Graybill and others to kind of rally Democratic support. I think that's what they're doing by emphasizing the importance of voting rights is young voters getting Native voters fired up about the fall election to get involved and to try and get them to turn out. I think it's as much about that as it is also about heralding what they do see as a critical decision to ensuring that Montanans do have that right to vote.

Sally Mauk: Holly, the Supreme Court's decision striking down these new laws has upset Conservative lawmakers like Senate President Jason Ellsworth, who's once again accused the Court of judicial overreach.

Holly Michels: Yeah, these critiques of the state courts from district courts all the way up to the state Supreme Court are not new territory for many Republican legislators, and Ellsworth as well. As recently as this month, Ellsworth led Senate Republicans in sending out a letter to the state Supreme Court, the governor and secretary of state saying that they felt a recent court order was unconstitutional. Ellsworth has also been critical in the past of several court orders, where he said the court has overstepped its bounds when it has struck down laws like you referenced earlier, Sally — laws that Republicans have passed in the Legislature over recent years. This committee that Ellsworth is saying he would form to examine the judiciary following his frustrations from this most recent ruling, it also wouldn't be the first time the Legislature in recent years has formed a special committee to do that. Back in 2021, Republicans in the Legislature created a special committee on judicial accountability and transparency after a spat between the judiciary and Republicans in the Legislature that initially started when the State Judges Association was found to be polling justices for their opinions on legislation that was being debated before the Legislature. It'll be pretty interesting to see what Ellsworth does here with the formation of this committee and what sort of things this committee might pursue, but this is definitely not a new theme for Ellsworth and fellow Republicans who've been frustrated when laws they passed have been struck down.

Sally Mauk: Well, again, Lee, this notion of courts and justices being too 'activist', that's playing out nationally, most prominently in how many people now view the U.S. Supreme Court as being too partisan, for example, for Conservative causes.

Lee Banville Right? I mean, there's a couple of things playing out here. First, here in Montana, you see, just like Raph Graybill is trying to fire up Democrats, Mr. Ellsworth is trying to fire up Republicans. It's important to remember there are two Supreme Court seats on the ballot in the fall. So, I think this effort on reforming the judiciary will also sort of inform that electoral landscape, that the proposed justices who are running for the Supreme Court are going to face. But I think you're right — it also speaks to a much larger question about, is the judicial branch somehow not political, or has it simply just become another wing of the legislative process? You know, I know that there's a lot of feelings from Liberals that the U.S. Supreme Court has become essentially a tool of the Republican Party. That would echo the way some Republicans feel that the Montana Supreme Court is a tool of the Democratic Party. I feel like the justices of both Supreme Courts would try to argue that they're not, that they're really just taking the Constitution and interpreting it in the way that they feel is appropriate. But it is clear that the courts cannot pretend that they're not part of the political debate, because they clearly are, and it's clear that this kind of back and forth between the Legislature and the Montana Supreme Court is going to play out, probably in a more heated way, as those elections draw closer for two really critical seats.

Sally Mauk: It's a campaign season.

Lee Banville: It is a campaign season — It’s Campaign Beat

Sally Mauk: Well, Holly, Montana's Supreme Court has another looming decision about the language to appear on a ballot issue that would strengthen Montana's constitutional protection of abortion. We talked last week about how Attorney General Austin Knudsen would likely try again to change the wording of this proposed amendment, and sure enough, he has.

Holly Michels: This most recent development came after Knudsen first declared the language of this ballot measure legally insufficient. The state Supreme Court recently overruled him on that and said he either needed to forward the ballot language as is to the Secretary of State or revise it and send it along so that the process — so that people who support the measure could gather signatures to get it on the ballot in November — could start.

And now what we're seeing is Knudsen's revisions are back in court under a challenge by a group called Montanans Securing Reproductive Rights. They're saying what Knudsen wrote for the ballot statement grossly misstates what they're seeking to do. Knudsen's statement has language about prohibiting parental notice for minors' abortion, it says the measure would prohibit the state from enacting health and safety regulations related to pregnancy care. It says there would be no enforcement of medical malpractice standards in abortion or pregnancy care. It says the measure would increase the number of taxpayer-funded abortions and more. What ballot measure supporters are saying is those statements really misconstrue what they're seeking to do, and this is all an attempt to delay them from being able to start that signature gathering process to qualify the measure. Before all this started, they were already concerned about having enough time to get the roughly 60,000 signatures they need from around the state before a June deadline. This further delays things, as Knudsen has until March 29th to respond to this appeal over his language, and then the court would still need to act. And then there's even further steps after that, before a signature gathering, including the chance for an interim legislative committee to weigh in with a vote on how they feel about the measure. That committee can't stop the measure from going forward, but their vote would appear on signature petition forms. So, the clock is really ticking here, and we'll all be looking to see what the court does before we know the next steps.

Sally Mauk: Democrats, Lee, they think Montanans will vote in favor of amending the Constitution to further protect abortion access, if it gets on the ballot with wording that isn't confusing or misleading.

Lee Banville Well, that is a thing that we're seeing play out nationwide, that the politics of abortion following the Dobbs decision, have empowered a lot of Democratic candidates in places — and Democratic causes — in places where they had been historically struggling. And so I think you're right that they are very interested in getting this ballot measure on the ballot. And they think that this would not only they think pass, I think Democrats in particular also think that it could help fuel turnout that might also help their candidates up and down the ballot.

Sally Mauk: Holly, outgoing State School Superintendent and congressional candidate Elsie Arntzen keeps being harshly criticized for not doing her job. This week it was the Board of Public Education who chastised her:

Board of Public Education chair Tim Tharp: I find this to be a highly distasteful situation, where one constitutional body is forced to request that another constitutional body carry out duties as prescribed.

Holly Michels: Like you said, it's the second time in a month that Arntzen's come under fire. Earlier, it was a group of bipartisan lawmakers that chastised her for how she is or isn't implementing laws that they passed. And that's what's going on now here with the Board of Public Education. Earlier this year, the board approved 18 charter schools to open next school year. But Arntzen's Office of Public Instruction is now saying those schools must also be approved by county commissioners in their counties to open. But as we heard from a board member at a recent meeting, that's not what lawyers are saying about this law that enacted charter schools.

The Board of Public Education told Arntzen she needed to reverse course by this July deadline, but she's dug in, saying that she won't change what she's doing. If the board wanted to, it could pass an administrative rule that would clarify what the law means. But the board's own lawyer is saying that that doesn't need to happen. At the end of this dispute the outcome's not totally clear what this could all mean for these charter schools if things don't get resolved by July. And I think that's probably why we saw after the board's meeting, a coalition of school districts and education associations around the state sued over the implementation of this charter school law, saying Arntzen and her office are interfering with their opening and operation. So we'll be watching to see what comes out of that.

Sally Mauk: Holly and Lee, we we're out of time. We'll see what the headlines bring next week. Thank you.

Campaign Beat is MTPR's weekly political analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Sitting in this week for Rob is University of Montana School of Journalism Professor of Political Reporting, Lee Banville. Tune in on-air Saturdays at 9:45 a.m. Subscribe wherever you get your podcasts.

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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.
Lee Newspapers State News Bureau Chief Holly Michels appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
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