Rep. Steve Fitzpatrick, the tall, bespectacled Republican from Great Falls, stood up on the House floor in late February and explained his bill that would allow local political party officers to be appointed by the state party instead of elected in primary elections.
But the bill was about something bigger, Montana’s century-old open primary law.
“It’s really a fundamental question with this bill,” Fitzpatrick said. “Do you believe in open primaries or do you believe in closed primaries?”
Montana has had open primaries since 1912 when a ballot initiative won support from a vast majority of voters. That means anyone can vote in the primary elections for either party.
A closed primary means only registered party members can vote in a primary for that party. Fitzpatrick's bill earned him a censure from his own Republican central committee, which voted unanimously to tell him he’s out of step with the party on this issue.
That’s because the Republican Party and a number of local Republican central committees are plaintiffs in a lawsuit that aims to prove Montana’s open primary law unconstitutional.
Rep. Matt Monforton, R-Bozeman, is the lead lawyer in the case. Fitzpatrick’s bill, House Bill 454, brings that debate to the third floor of the Capitol, attempting to gut the suit by nullifying the easiest claim to prove.
According to the National Conference of State Legislatures, Montana is one of 11 states with completely open primaries.
Supporters say open primaries further privacy rights by not requiring someone to register with a political party to participate. Opponents say open primaries are unconstitutional and allow members of one party to decide the outcome of an opposing party's primary.
That’s what former Senator Scott Boulanger, a Republican from Darby, said happened to him in the spring of 2014.
Boulanger was appointed to the Senate for the 2013 session after voters elected Bob Lake to the Public Service Commission.
In the 2014, Boulanger ran for the seat, first in a primary. Boulanger faced then-Rep. Pat Connell, R-Hamilton, who spent two terms in the House. Ravalli County, where the two are from, is a strongly Republican area.
Boulanger guesses it’s about 60 percent Republican, 40 percent Democrat.
The two had opposing views on some key issues. Connell is more moderate; he supports some form of Medicaid expansion and the Flathead water compact, two things Boulanger doesn’t.
Both campaigned hard. Connell called it a “long, arduous process that was not a lot of fun.”
Boulanger said he ran “a very good primary campaign” and thought he was in the lead going into the election.
Connell won by 34 votes.
“I think there was two people who were shocked by the election,” Boulanger said, meaning he and Connell.
Boulanger said Democrats voted for Connell to help him win. Jan Abel, the chair of the Ravalli County Democratic Central Committee, said she’s sure some Democrats voted in that race, but the committee didn’t urge party members to support Connell.
Boulanger wasn’t surprised Democrats voted on the Republican ticket because they are so outnumbered in the area.
“What else can they do but sabotage our conservative agenda and go with a liberal Republican?” Boulanger said.
Boulanger and others say open primaries have changed the Republican Party over the years as candidates cater to non-Republican voters in those elections.
“We’re just continuously watering down the conservative message,” Boulanger said.
Tom Tuck, the chair of the Gallatin County Republican Central Committee, agreed, adding that he thinks it harms the fairness of general elections.
“To have fair elections we need to have true Republicans facing true Democrats,” Tuck said.
Open primary supporters argue that closed primaries instead lead to more extreme candidates from each party.
Abel said she hopes open primaries will stay, as did Gallatin County Democrat Billy McWilliams.
Connell, for his part, supports open primaries.
“If a Republican message resonates, people have the right to vote,” he said.
Connell and other Republican supporters of open primaries say because closed primaries require someone to choose a party, it discourages middle-of-the-road voters. “It’s pretty hard for people in a union town to vote Republican,” Connell said.
Another worry with closed primaries is that the extreme voices in each party would take over, something Connell thinks would be a disservice to Montanans.
“Montana is not a state of radicals,” Connell said. “My election proves it.”
Two Constitutions, a Lawsuit and a Bill
The suit to close Montana’s primaries is just the latest in a number of open primary challenges around the country. In 2011, a federal district court ruled Idaho’s primary system unconstitutional.
Anthony Johnstone, a University of Montana law professor, said the claims generally surround the right to “freedom of association.” Confirmed by several case precedents, freedom of association is the right to gather with like-minded people to enhance First Amendment rights to free speech and expression.
“Political parties are at the center of that,” Johnstone said.
It gives them the right to include only who they want to include, something closed primaries do by requiring party registration.
There are two claims in the Montana suit. One asserts that it’s unconstitutional to elect party candidates for statewide elections through an open election.
The other says it’s unconstitutional to elect local party officers that way, the easier claim to prove.
“There is much less tolerance for interference in the party’s internal government,” Johnstone said.
That second claim is the subject of Fitzpatrick’s bill. House Bill 454 would let the state party appoint local party leaders instead of having them elected. Right now local leaders must be elected, this bill gives the party a choice between electing and appointing them.
Some say appointing the local people centralizes too much control with the state party, others say it’s hard to find candidates for local positions. Chris Shipp, executive director of the Montana Republican Party, doesn’t like the idea, nor do some of the local committee officials.
But the bill would give parties an option, just enough to quash that second claim in the lawsuit.
Rep. Monforton, the lead lawyer on the case, said the bill is a direct assault on the lawsuit from Fitzpatrick and Attorney General Tim Fox, whose office is said to be lobbying for the bill behind the scenes.
Rep. Mike Miller, R-Helmville, said he’d been asked to support the bill by Jon Bennion, the main lobbyist for the Attorney General’s office. Miller voted no on the bill, which cleared the House on a 53-46 vote.
John Barnes, the spokesman for the Attorney General, didn’t address claims that the office had been lobbying for the bill. He said in an e-mail the department “has had discussions with legislators regarding the open primary issue.
We believe there is merit to having Montana’s lawmakers decide this issue rather than the federal courts.”
Either way, Monforton, who didn’t vote on or debate the bill, believes Fox is behind it, and he said it’s the wrong way to try and win the suit.
“The Attorney General and his attorneys are supposed to make their arguments in court rather than make backdoor deals to undermine lawsuits,” Monforton said.
Still, even if the bill is signed into law, the other claim in the suit remains. Monforton said he expects a summary judgment later this year. To win, he’ll have to demonstrate that Democrats affect the outcome of Republican primaries, which he said is evident in some nationwide studies.
He’ll also have to contend with an argument Fitzpatrick raised on the House floor, that someone’s political beliefs are covered under Montana’s constitution, which guarantees a right to privacy. Fitzpatrick said people don’t want to have everyone know their political beliefs, for fear their businesses or social lives might suffer as a result.
Monforton said there is already court precedent that says political privacy isn’t of the same importance as medical or financial records, and he thinks that argument will prevail in court.