Montana Public Radio

New Voting Laws Face Legal Challenges As Legislature-Supreme Court Standoff Continues

Apr 23, 2021

The dispute between Republican legislative leadership and the state Supreme Court will likely continue after the legislative session ends. This as Montana joins several states in passing changes to voting laws — and those changes are already being challenged in court. And Friday, lawmakers reached a compromise on how to implement recreational marijuana.

Listen now on Capitol Talk with Sally Mauk, Rob Saldin and Holly Michels.

Sally Mauk Rob, the dispute between Republican legislative leaders and the state Supreme Court over whether the court is biased against some laws that have and may come before the court out of this session — that dispute continues.

There's a select committee that is looking into it, but it appears that that committee will continue even after the session adjourns, and the standoff isn't going to be resolved any time soon. The question I have is what kind of harm and to whom does this cause?

Rob Saldin Yeah, Sally. Well, I think the Republicans in the Legislature have scored a win here, regardless of how this thing ultimately plays out.

You know, the state Supreme Court and the state judiciary as a whole, it's a very different institution than the Legislature or the executive branch led by the governor. The court is a relatively depersonalized and depoliticized institution.

You know, most Montanans couldn't name any of the justices, and while the justices on the Supreme Court are elected, they don't run under party labels. So there is at least a public perception that the court isn't partisan and it's not political, at least relative to the Legislature and the governor.

And that public perception is important for the court's legitimacy. So insofar as the court of public opinion is concerned, the judges in this one seem to have provided some real ammunition to their critics in the Legislature, and it may well prove to do some damage to their institution.

Mauk In a meeting recently with a select committee, here's what Chief Justice Mike McGrath told them:

"A judge's view of whether to support or oppose a bill as a matter of public policy is by no means the same as an indication of how a judge may construe the statute in subsequent litigation, or even whether the judge must decide its constitutionality."

He's defending the court's impartiality here Rob, but Republican leaders aren't buying it.

Saldin You know, McGrath there he is making the point that these allegations of bias and a lack of impartiality are basically overblown, and that there's nothing shocking or scandalous that judges — like any of us — would have thoughts about matters in the public sphere.

And indeed. I mean, I think there's something to this. It would be extremely weird and frankly alarming if these judges were truly blank slates on everything — and the instigating issue at the center of all this is a Republican plan to overhaul the judiciary. I mean, are we really supposed to expect that people within that institution are entirely neutral and have zero thoughts on the matter? So, you know, I think there's something to what McGrath is saying.

On the other hand, it looks really bad when you have these emails about the justices expressing their views on this before it comes before them. And that at least seems like a bit of an unforced error to have all of that in writing.

It is, though, I think worth noting that the court system has clearly been a GOP target for many years. It's even in the party platform. So this is quite clearly a public confrontation that the GOP legislators have been seeking and are thrilled to be having.

Mauk Holly, one of the lawsuits the court may eventually decide was filed this week by Montana Democrats who are challenging the constitutionality of two new laws that eliminate voter registration on Election Day and tighten voter ID requirements. And the suit alleges these measures are intended to suppress the vote.

Holly Michels This is the second lawsuit now we've seen filed in response to bills passed this session. And like the first one, this came less than a day after the legislation was signed by Republican Gov. Greg Gianforte.

The bills were generally passed with Republican support, Democratic opposition, and the lawsuit, as you said, filed by the Montana Democratic Party — it's against Republican Secretary of State Christi Jacobsen, who throughout the legislative process said that both of these bills were top priorities for her.

In the lawsuit, we hear Democrats making a lot of the same points opponents to the bills made as they worked their way through the session. And that's that these bills are addressing a problem that doesn't actually exist.

Republicans have said they're meant to protect the state's election integrity — which is a phrase we've heard a lot this session — but we have seen over and over again that there's not fraud in Montana's elections.

It's even to the point where in a previous lawsuit last November where Republicans were challenging voting by mail because of the pandemic, Republicans weren't able to point to a single instance of voter fraud in the state over the last two decades.

And this lawsuit now points out one of the carriers of one of these bills said that when she was raising concerns of voter fraud in a committee meeting where she was advocating for the bill, she wasn't talking about Montana specifically.

We saw Republicans in support of the bill — the one that changes the deadline for registering — they're saying that it would allow elections officials to focus on voting and counting ballots, not helping people register. We have seen long lines of people registering recently on election days, but opponents are arguing those long lines speak to the need for same-day voter registration, that often people only have the time off work or can only get a ride to make that one trip, not two separate ones to register and then later vote. We have had same-day voter registration in Montana, back to 2005.

For the other law, Republicans are arguing stronger voter ID is a better way to make sure the person voting is who they say they are. Democrats are saying in this lawsuit [that] it's an attack on younger voters specifically who might not have a driver's license and now can't use a photo ID maybe their college has issued, and would need to bring something like utility bill if they're going to do that — or a bank statement or car registration, which Democrats point out you might not have if you live in a dorm, don't have utilities in your name, that sort of thing.

I think something interesting: This case was filed in Yellowstone County, where Democrats filed lawsuits back in last November's election and were actually successful in overturning the Ballot Protection Interference Act. They've actually got the same lawyer in this case, too — Matthew Gordon out of a Seattle law firm that's represented the party in cases against the secretary of state before and been successful.

Credit Montana Public Radio

Mauk Rob, Montana's far from the only state to pass new voting laws this year, and those new laws are facing intense blowback in most of those states.

Saldin Right Sally. You know, big picture — I think we've mentioned this offhandedly a time or two over the course of the legislative session — but it's really remarkable how action in Republican-controlled state legislatures has been nationalized this year.

They're all using the same playbook. It seems like you see it on the transgender stuff, on the abortion stuff and so on. And in some cases, even the language that appears in bills is identical from state to state.

And so all of this nationalization in our state politics erodes kind of the idea of federalism — you know, that we have unique challenges and issues and opportunities here in Montana that are different than those in, say, Florida or New York.

But the voter suppression stuff really stands out as a prime example of this, and as you say, we're seeing the same kind of laws passed all over the country. And, of course, there's been a response to this, most notably in Georgia, but elsewhere.

And I think that's because so much of these efforts that we see playing out all across the country in Republican-controlled states are grounded in the false assertion that Trump was the real winner of the presidential election, that it was stolen from him. And as a result of that, we have to take some action and many elite-level Republicans have endorsed all of that.

The other thing going on here: Some Republicans, at least, will say that part of the deal is that they feel that they can't win elections if too many people show up to vote. And one irony in all of this is that at least here in Montana, that clearly is not the case. In other parts of the country, I don't know, maybe so, but definitely not here.

Nonetheless, the Republicans in the state Legislature are very much following along with what everybody else is doing on this.

Mauk Holly, a compromise has been reached on a bill to implement Montana's legalization of recreational marijuana — and there's a little something for everyone in this compromise.

Michels Yeah, there is. So we started out with three bills that went into this special committee just working on marijuana legalization. And then one emerged from that committee. That's House Bill 701 from Missoula Republican Rep. Mike Hopkins. And this is the one that was expected to be the main vehicle.

And speaking to what you said, that there's something for everyone there — the bill cleared that committee on an 11-1 vote after a pretty significant amendment so that shows kind of where it's sitting right now in terms of support.

One of the bigger changes made in that amendment is that now, after putting $6 million toward the governor's HEART Fund — which is a proposal to pay for community-based substance use disorder treatment, which has been in the bill since the start — the bill now puts 20% of funding after that to the Habitat Montana Program, which pays for conservation easements.

There's still some timing and technical caveats to that, but a pretty big change from the earlier version of the bill that didn't have that funding at all. That was a really big sticking point for conservation groups and Democrats who kept pointing to the ballot initiative that put revenues toward that program of public lands access — and passed with 57% of the vote.

The sticking point there is only the Legislature, not ballot initiatives, can appropriate money. But Democrats have been arguing that the Legislature should have taken that ballot initiative language and just used it as their guidelines.

So now that money is back, I think that's part of the reason Democrats are backing this bill now. And divvying up revenues from this 20% tax on recreational marijuana was always one of the biggest things to settle.

Another pretty big change that we saw is now there's a provision in the bill saying that counties that voted to legalize recreational marijuana, which is half of the state's 56 counties, would now default to allowing recreational marijuana businesses.

Counties that didn't vote for legalization would default to not allowing them, and then those counties could vote to change that default status. Before the amendment, counties would have had to opt in to allow businesses, and under this provision, medical providers are grandfathered in so that eases some concerns there.

So this bill now — it's already cleared the House, it got out of the Senate committee. We're in what lawmakers hope next week is the last week of the session, so it'll need to get through the Senate, get back to the House where the House takes up those amendments and then it could go to free conference committee depending on how they want to handle it.

But under a pretty tight timeline, it's going to be moving forward now.

Mauk Rob, legislation that would have left ratepayers on the hook for NorthWestern Energy's Colstrip investment does not appear likely to be going to survive this session — and that's largely because the opposition is bipartisan, really crosses party lines.

[Editor's note: After this program was recorded Friday morning, parts of the bill to allow NorthWestern Energy to pass costs onto customers if the utility buys more of the Colstrip plants were folded into another piece of legislation and advanced out of committee. That separate bill now could allow NorthWestern to charge customers without regulators setting the terms for power it buys in some situations to make up for outages or reduced power generation at the plant.]

Saldin Yeah, it does this time, Sally. And it's a tough situation — I mean, you've got to feel for people in that community. But so much of this is just beyond the control of the Legislature: There are market forces at work here.

And this is a tough issue for Republicans especially, I think, who on the one hand like coal, want to support Colstrip, but on the other hand, are philosophically opposed to government picking winners and losers. And the reality is, is that that's basically what this bill was going to do.

It would have been great for Colstrip, it would have been great for NorthWestern Energy, but it could have been pretty terrible for consumers — and consumers, by the way, who don't have other viable options for meeting their energy needs.

You know, the bill was going to effectively cut out the Public Service Commission in its role in protecting the consumer in this case. And that led to charges of corporate welfare and dredged up memories of the deregulation process from some 20 years ago, which was and continues to be a disaster for consumers.

The reality here, the tough bottom line for Colstrip, is that while coal used to really stand out as being a cheap and reliable energy source relative to the other options, that's just not true anymore. And then, on top of that, there's been of course the growing concern for many years now over the environmental costs, especially with regard to climate change.

And so, you know, you've got just all of this momentum pushing against coal-based energy. And there's nothing really that the Legislature can do about that basic fundamental dynamic that's at work here.

Mauk Well, the end of the session is in sight — as Holly mentioned, it might be next week. Holly and Rob, I'll talk to you then. Thanks

Saldin Thanks Sally.

Michels Thanks Sally.

Corin Cates-Carney Hi there. This is Corin Cates-Carney, news director at MTPR, jumping in with a quick update before we go.

After this program was recorded Friday morning, parts of the bill to allow NorthWestern Energy to pass costs onto customers if the utility buys more of the Colstrip plants were folded into another piece of legislation and advanced out of committee.

That separate bill now could allow NorthWestern to charge customers without regulators setting the terms for power it buys in some situations to make up for outages or reduced power generation at the plant.

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. Tune in during the legislative session on Fridays at 6:44 p.m., via podcast or listen online.