Memo: GOP leadership limited in election integrity investigation

Late last month, 86 of Montana’s 98 Republican lawmakers sent a letter to Senate President Mark Blasdel and House Speaker Wylie Galt urging the creation of a special legislative committee to probe the security of Montana’s elections. A memo produced Friday by a staff attorney at the state’s Legislative Services Division now reveals that GOP leadership alone does not have the authority to heed the request of its caucus — at least not in the manner requested.

According to the memo, prepared by legislative staff attorney Jaret Coles, the limitation stems from a 2019 rule change requiring that the creation or appointment of a special committee by the House speaker must be approved by a majority of the House. Obtaining that approval would necessitate a special session of the Legislature, which can only be convened by the governor or by a majority of legislators. Coles’ memo estimated that the cost of a special session would be $108,003 for the first day and $56,685 for each day after, plus overtime pay following the fourth legislative day.

Coles noted that his memo reflects only his legal opinion and analysis. It was prepared in response to an Oct. 5 letter from Blasdel and Galt asking for clarification on the processes for creating a special committee. In the letter, Blasdel and Galt wrote that they also wanted “guidance regarding other mechanisms that might allow a group of legislators to conduct hearings, take testimony, examine public records and draft legislation regarding a specific topic.”

Coles’ memo in response outlined a number of such mechanisms, beginning with the Senate president’s ability to create a special committee to review Montana’s election laws. The makeup of such a committee would be limited solely to members of the state Senate, though Coles stated that House members could comment and participate in the same fashion as the public. However, Coles also wrote that the investigative power of such a committee “is not absolute.”

“If the Legislature or a legislative committee reviews Montana’s election laws and processes, it would need to focus on a valid legislative purpose,” the memo reads. “For instance, investigating past violations of state election laws is an executive branch function. However, the Legislature could investigate past election processes for the purpose of drafting legislation to increase the security and integrity of future elections.”

That type of review could also be conducted by two separate committees that are already conducting business between sessions: the State Administration and Veterans’ Affairs interim committee and the Local Government interim committee. The former has legislative oversight of the Montana Secretary of State’s office, which, according to Coles’ memo, grants it the ability to conduct hearings and draft legislation on specific election issues at the state level. The latter committee could act as a liaison to local government agencies in discussing election improvements, but does not have authority to compel a local government to do anything not permitted by state statute. Coles noted that in both cases the interim committees lack the ability to examine confidential records — more specifically, individual ballots — or perform investigative activity beyond the scope of their legislative authority.

Coles further pointed out that while the Legislative Audit Committee and Legislative Audit Division do have statutory authority to determine whether the secretary of state’s office is carrying out election activities and programs effectively, such an audit “would be limited to state agencies” and not extend to local governments.

Among the signatories to the Sept. 29 letter requesting creation of a special committee was a group of Republicans who have promoted questions and claims about the 2020 election. Those claims include allegations of irregularities in Missoula County’s election results, and suggestions that President Donald Trump lost the election last fall due to widespread, orchestrated voter fraud perpetrated nationwide, including in Montana. No evidence has been produced supporting claims of nationwide fraud on the scale alleged by Trump and his supporters. Secretary of State Christi Jacobsen has not directly addressed any allegations specific to Montana’s election.

Kyle Schmauch, spokesperson for Montana’s Republican legislative leadership, told Montana Free Press that Coles’ memo was forwarded to all members of the Montana Legislature. He added that Blasdel and Galt are still in the process of reviewing the document and that their response will take “a couple days.” Though neither Blasdel nor Galt has taken a public stance on the creation of a special committee, Schmauch pointed out that both voted for several changes to election administration law this spring. 

“They also obviously are elected by their caucus, so certainly take very, very strongly any requests made [by] the caucus,” he said. “It’s just a matter of looking at what the options are at this point, and also what any goals would be coming out of the process.”