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Republicans try to tilt the scales in the Senate race, constitutional amendments stall

Rosendale attends Trump's post-arraignment event. Republican leaders want to change election rules — but only in one race. Many Cascade County residents are not happy with how their top election officer is doing her job. And several proposed amendments to the state Constitution may not make it to the ballot after all.

Capitol Talk is MTPR's weekly legislative news and 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.

Sally Mauk Rob, this was an historic week with an ex-president being arrested and fingerprinted, and reactions among Montana's political leaders were predictably partisan. But I was struck by who showed up and who didn't. Former President Trump's post arraignment speech at Mar-a-Lago, Montana Congressman Matt Rosendale was there posing for pictures. In Montana, Senator Steve Daines, who's leading Republican election efforts in 2024, did not attend. What should we take from that, if anything?

Rob Saldin Well, I thought it was about what you'd expect. You know, Daines, with one major exception, has typically not been among the real hardcore MAGA crowd. That one major exception, of course, was his support of the "stop-the-steal" effort following the 2020 election that saw Biden's defeat of Trump as fraudulent. Daines was among that group of senators that announced that they would not vote to certify the election on January 6th. And it is easy to forget how important that was in providing the broader effort to overturn the election with a sense of momentum. Right? It wasn't just a rogue House member or two objecting to this. You know, there were a bunch of senators behind this thing. It was significant in communicating to Trump's most ardent supporters across the country that they might actually be able to keep Trump in power.

You know, but aside from that, Daines has generally not been amongst that real hardcore trump group. He seems to want to both be clearly pro-Trump and get that MAGA love while also wanting to play the role of the respected and earnest senator who is, you know, taken seriously as a statesman and whatnot.

Rosendale, by contrast, has never seemed to aspire to that kind of a role. He's clearly among that group of rather rarefied, unabashed, full-throated true believers like Marjorie Taylor Greene and Matt Gaetz and Paul Gosar and so forth. And if anything, between the speaker vote a couple of months ago and now being at the Mar-a-Lago indictment celebration, he's moved perhaps more in that direction here recently. And that, of course, might be one reason why it seems as though Daines — who, as you note, Sally, is heading up the Republican Senate election efforts this cycle — might be one reason why Daines is not necessarily eager to have Rosendale running against Tester for the Senate this cycle, presumably viewing Rosendale as too far out there.

Sally Mauk Well, speaking of elections, Holly, Montana Republicans want to change how our 2024 election is conducted, but only for the U.S. Senate race. Senate Bill 566 would eliminate party primary races and substitute a primary that would advance the top two candidates, no matter their party, who get the most votes in that race. And Polson Republican Greg Hertz says the change would ensure the most popular candidate wins.

"These are six-year terms and to me, if we're going to send someone to Washington D.C., they should have the majority support of our, of our voters" Hertz says.

Sally Mauk But Senate Minority Leader Pat Flowers believes the bill is a blatant effort to defeat incumbent Democrat Jon Tester.

"Let's not kid ourselves. This is just brazen partisanship targeting a single race. This isn't fair. This isn't what Montanans want. They don't want one party rule," Flowers says.

Sally Mauk Holly, as Senator Flowers just said, this change would only be for the one Senate race.

Senate Bill 566 would create a primary system in which the top two candidates who win the most votes advance to the general election, regardless of party. Right now, each party has separate primaries and advances a winner.

Holly Michels So this bill, like you said, we'd have a primary system where just the top two vote getters move on to the general. But some key provisions in this bill is it would only apply to U.S. Senate races. And like you said, only one very specific one, since it would expire in 2025. And the only race happening in Montana between now and then is the one Rob just referenced where Jon Tester, Democratic senator, is seeking reelection. So that's why we hear Democrats like Minority Leader Pat Flowers there call it brazenly partisan, unfair.

We have heard Senator Hertz and other Republicans who support this bill say they think because of the importance of the office and the length of the term, this is how elections should be. Hertz has also argued when he set the expiration date for the year after Tester's race it's because he wanted a test run before the system would be used more broadly. But i think Democrats are pointing out, you know, this is pretty targeted at one very specific Senate race.

Outside of Democrats, third parties in Montana don't like this bill either, because they say it would cut them out entirely from general elections, since it's pretty unlikely they would be able to advance to that November vote. And that's where Democrats have some concerns. This could hurt Tester if there's not a third party on the ballot. We've seen those third party candidates play roles in past races where if you were to assume a Libertarian candidate, one of those races, if all of the votes that they pick up would have gone to the Republican, that could have helped out Tester. Libertarians in Montana are qualified for the ballot. Green Party is not, but we've seen that pop up in the last two major elections, including Tester's 2018 Senate race with sagas over attempts to qualify that party and who's paying for those efforts.

This bill from Hertz did clear the Senate. We saw five Republicans vote against it there. But now it's making its way to the House and we'll see what happens. We've also heard people who are opposed to the bill promised litigation if it were to pass and be signed into law. So that's something else to be watching, too.

Sally Mauk Well, Rob, Senator Tester did win his last race by just over 50% of the vote. So why should he worry about this proposed change?

Rob Saldin Well, he should worry because it will make it tougher for him. You know, I don't think it's a disaster if this thing goes through. But but it would make it tougher for him.

You know, one thing on the jungle primary; in the abstract, this is not a crazy idea. A few states, including California, have jungle primaries, and actually, a lot of pro democracy reformers have pushed jungle primaries as a way of breaking the two party stranglehold in our elections or as a way of boosting more moderate candidates or increasing voter turnout and so forth. So there are certainly principled arguments for this kind of thing, but that's definitely not what's going on here. Republicans are trying to change the rules because they think it will give them a better chance of beating Tester. And they're right on that. In Tester's three Senate runs. As you noted, Sally, you know, he hit 50% in the most recent one against Rosendale in 2018, but the other two he did not. And in 2012, the Libertarian candidate, Dan Cox, took a significant chunk of the vote when Tester defeated Denny Rehberg. And if you had eliminated Cox from the ballot, there's good reason to think that most of those Libertarian votes would have gone to Rehberg, and at the very least, it would have been an even closer election.

The striking thing here, as you noted, Holly, is that Republicans in the Legislature barely even pretending that this is something other than a cynical power grab. They give a little lip service to kind of some principled element here. But as you all both noted, they aren't saying that they want to move to a jungle primary for all of Montana's elections. They aren't saying they want it for all of the congressional elections or even all the Senate elections moving forward. Right? They only want it for this one particular election in this one particular year.

Sally Mauk Meanwhile, Holly, there are also allegations of election shenanigans going on in Cascade County. Many voters there have lost faith that their new clerk and recorder, Sandra Merchant, can be trusted to administer fair elections in their county. What's behind her critics' concerns?

Holly Michels Yeah, this has been quite the saga and is causing, like you said, a lot of stress and concern for voters and schools and the library and Cascade County. What happened is back in March, Sandra Merchant, who's the fairly newly elected clerk and recorder for Cascade County, sent emails to Great Falls public schools and Swan River public schools, saying that because of the loss of a mail services vendor, it wouldn't be economically or administratively possible to hold their upcoming elections by mail, which is how those types of elections are normally held. And she said instead they would look at doing it at polling places. And that created a huge amount of concern because those are pretty typically low-turnout elections to start with. And then having them at polling places could hurt that even more. Even on regular on-cycle presidential elections in Montana, the vast majority of people in the state, you know well, more than 70% vote by mail.

Merchant said she was told about the closure of this company back in January and had a backup option, but that option later said they didn't have the capacity. And this actually came out through reporting by the Great Falls Electric, who first covered this issue. And Merchant, her office, really didn't say much to clarify what would happen with the election, how it would work. At that point, reporters around the state started pushing on this. People in Great Falls started asking a lot of questions. Finally, there was a meeting held March 31st where there was a pretty large crowd. They actually had to move the venue to accommodate it. At that meeting Merchant told people that ballots would be mailed out April 17th, as they were supposed to, and the election for schools would still be held May 2nd. But she did say there's going to be polling place options, which is not really the norm for these elections. That would be the same setup for a public library election. That's also on June 6th.

Merchant said they'll use in-house employees to do the print jobs, sort everything, all the work that's typically done by the vendor. The people at this meeting still had a lot of questions for Merchant asking about the added cost that a polling place election would incur. School districts concerned that could be tens of thousands of dollars. Merchant disputes that. But if there is, it's also not clear who should pay for those additional costs. And on top of that, this whole thing has just caused massive headaches for both the schools and the library who have some pretty major needs they're hoping to have met with these elections. The library said, for example, if the levy they're running doesn't pass, they'd have to cut staff and hours. So pretty complicated, pretty frustrating for people up there.

Cascade County’s elections administrator was the subject of a withering line of questions and criticism Friday about upcoming local special elections.

Merchant's a Republican. She was elected last fall in a really tight race. She beat out longtime Clerk and Recorder Rina Moore, who was a Democrat. Merchant won by just 31 votes. And a recount of that race happened, there's actually drama around that. Two people ended up swarming the Clerk and Recorder's Office in Cascade County, making election workers feel really threatened as they did their job there, a lot of that tying into claims of if they were maybe trying to somehow sway the election for the former Clerk and Recorder Moore. So even Merchant's election has had a lot of a lot of drama around it. I think it's fair to say it's been a pretty intense time for Cascade County with these elections, and probably worth watching pretty closely as it goes forward to see how they actually unfold.

Sally Mauk Well, Rob, Cascade County isn't the only place having election issues. There are efforts across the country to change how elections are conducted in the wake of the false allegation that the 2020 presidential election was rigged. This is something that's happening in a lot of places across the country.

Rob Saldin Yeah, it sure is, Sally. And, you know, I think in fairness, it does predate the 2020 election, but it's very difficult to think about these things and view them outside of that context. Now, one of the things that strikes me about Cascade County and Montana more generally is that in a lot of the other places where this is going on, the situation is one in which Republicans are on the ropes, they're pretty clearly in the minority or are just desperately clinging to what used to be a stronger position and they're hoping to find a way to essentially maintain political power while in the minority. The curious thing in Montana — and Cascade County is a great example of this — is that Republicans have been thriving. You know, Cascade County used to be a Democratic stronghold. Then it was kind of one of these bellwether counties as well. Republicans have been absolutely crushing it in Cascade more recently. They are not desperately trying to cling to power. So one does wonder why you'd need to go to such efforts to try to tilt things in your favor.

Sally Mauk Finally, Holly, there are several proposals to amend the state Constitution, but they may be headed to defeat after they did not pass the House with enough votes to achieve the required supermajority — though we won't know that for sure until the Senate votes on them.

Holly Michels Earlier this session, Republicans were saying it wasn't a given that their party would vote as a block on some of these constitutional referendums, and looks like they were right on that. Like you said, several proposals look to be in trouble after they saw enough Republican defections to not look likely to be able to get the 100 votes needed in the whole Legislature to make it to the 2024 general election ballot. You know, we talked about this before. Republicans hold a supermajority in both chambers with 102 votes across the House and Senate, but they lost enough votes and it's pretty unlikely that Democrats aren't going to be voting for any of these referendums, so they seem to be stalled. That's with one exception. There is a measure for a mental health trust fund which saw pretty overwhelming bipartisan support and looks to be doing okay.

Sally Mauk Holly and Rob, thank you very much. I'll talk to you next week.

Holly Michels Thanks.

Rob Saldin Thank you, Sally.

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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