Election security committee debates enforcement

Montana’s Joint Select Committee on Election Security inched closer to releasing its final policy proposal of the 2023 session this week as a March 28 deadline looms.

The six-member committee introduced a trio of bills just ahead of this month’s transmittal break, two targeting county processes related to vote tabulating machines and one addressing maintenance of county absentee voter lists. All three quickly passed through the Senate. 

Now the committee has turned its attention to violations of Montana election laws, working to develop language on how those laws should be enforced. A handful of citizens have repeatedly appeared before the committee with claims that state and local election officials are ignoring public records requests and allegations of misconduct in recent elections. That testimony has helped convince Democratic and Republican committee members of the broader need to create a more well-defined governmental process for addressing the public’s concerns.

Monday’s meeting was slated to be the select committee’s last, but members struggled to reach consensus on where to vest that enforcement authority. Democrats suggested it should fall to the commissioner of political practices, and Republicans argued in favor of granting it to the Montana Attorney General’s office. Rep. Steven Galloway, R-Great Falls, said the latter seems to be the “natural place” to fund such efforts, noting that the Texas Attorney General’s office has its own investigative unit dedicated to election integrity. 

“Okay, let’s put them over in COPP. What do they do when there isn’t anything to investigate or do?” Galloway asked. “[If] we put them in the AG’s office, there’s lots of work they could be working on.”

“From my observation in discussions with the commissioner of political practices, they are already understaffed in terms of investigating the other kind of stuff that we’re all familiar with about candidates and so on,” responded Rep. Ed Stafman, D-Bozeman. “So if they had another investigator, I would bet anything they’d be tickled pink.”

In response to an email inquiry from Montana Free Press Monday, Secretary of State Christi Jacobsen’s office wrote that allegations of election misconduct are currently handled “on a case-by-case basis with confusing overlap in investigative and prosecutorial authority by many government entities.”

The latest working draft of the committee’s enforcement bill proposes the former route, establishing two new full-time positions at the Department of Justice to investigate and prosecute election law allegations leveled against citizens or against election officials. The positions — one investigator and one prosecutor — would be under the direct supervision of the attorney general. The draft also includes a $175,000 annual appropriation to fund the new positions.

That language was developed by committee members in late February. But during Monday’s meeting, Stafman noted that he had since learned the COPP office already has jurisdiction over a portion of state law outlining various types of illegal election activity. His suggestion to revisit the draft to direct authority to the commissioner’s office triggered a lengthy debate over what approach the committee’s proposal should take. Both sides largely agreed that the responsibility should fall to a state agency, with Galloway expressing concern that assigning election enforcement to county attorneys could raise conflicts of interest if allegations are made against county election employees.

The disagreement on where to proceed from there hung in part on the potential for political bias. Stafman argued the COPP is tasked with maintaining an impartial stance on official matters. Galloway and Sen. Theresa Manzella, R-Hamilton, pushed back on that assessment.

“By virtue of the title of the position, commissioner of political practices, it is very political,” Manzella said. “His primary focus is on campaign finance, and they are kept extremely busy in that little tiny house down there just investigating us and the lobbyists and the out-of-state interests that come in and break our laws.”

Stafman countered with the same argument. Attorney General Austin Knudsen is a “hard worker,” he said, but “I think he is a very political animal, as was his predecessor.” For Stafman, the distinction primarily came down to a question of public perception. Montanans tend to view the COPP as a neutral arbiter of politically charged disputes, he continued, while Knudsen has publicly joined numerous national lawsuits challenging policies adopted by President Joe Biden’s administration.

“He does a great job with what he’s charged with doing, but he takes a very partisan line also,” Stafman said. “I think if we want to create more election integrity, we give it to as independent an official as possible.”

The committee’s other Democrat, Sen. Shane Morigeau of Missoula, attempted to broker a compromise. He recommended directing election law violations that are currently under the commissioner’s jurisdiction to the COPP, and directing more egregious allegations such as bribery or corruption to the attorney general. Either way, Morigeau said, the committee needs to do something to address recent citizen concerns and give Montanans a clear, centralized place to go with any election-related concerns. 

“There obviously is a need here,” Morigeau continued, “and I don’t want us to miss an opportunity to address something that I think people are lacking in Montana.”

Ultimately the enforcement proposal will need to be approved by five committee members in order to advance in the Legislature. Acknowledging that consensus was still out of reach, committee chair Sen. Carl Glimm, R-Kila, scheduled one more meeting for March 23, at which point action has to be taken to meet a March 28 deadline for introduction of appropriations bills.