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The 2023 Legislature’s adjournment May 2 generated a flurry of coverage as scores of high-profile policy debates in both chambers came to an abrupt end. Fairly high on that list of debates was the topic of election security, which kicked loose a flood of proposed changes — some successful, some not — and inspired the formation this session of a dedicated committee.
But something else happened last week on the election policy front, a development tied not to the latest round of lawmaking efforts but rather to an earlier iteration of the debate that played out two years prior. After getting three deadline extensions over the past four months, Secretary of State Christi Jacobsen finally filed her opening argument in an appeal to the Montana Supreme Court to reinstate election laws passed by the 2021 Legislature.
We’ve likely all accumulated some mental cobwebs on that front, what with a spring full of legislative sparring on gender identity and reproductive rights and state spending. To recap: Lawmakers last session approved four new laws directly impacting the voting experience. They ended same-day voter registration, rolled out new voter identification requirements, prohibited payment to people who return voted ballots on behalf of other voters, and barred counties from sending absentee ballots to minors who would be eligible to vote by Election Day. The laws quickly generated a legal challenge, and were overturned last fall when a Yellowstone County District Court judge ruled that they infringed on Montanans’ constitutional right to vote.
Jacobsen’s appeal hinges on two arguments raised earlier in the case: that the laws are not as burdensome as the district court determined, and that the U.S. Constitution grants the Montana Legislature sole authority to regulate the state’s elections — an argument known as the “independent state legislature theory.”This week, Jacobsen was joined in her appeal by the national nonprofit Restoring Integrity and Trust in Elections (RITE), which echoed her arguments and added that the district court was too exacting in its demands for evidence that the laws are necessary. The group, which was co-founded by former Trump Attorney General William Barr and longtime GOP strategist Karl Rove, also backed Jacobsen last summer in asking that the state Supreme Court overrule a lower court injunction temporarily blocking the laws. The court briefly reactivated the laws but later rejected Jacobsen’s request.
So we’re off to the races once more. Plaintiffs in the original case, including the Montana Democratic Party and Western Native Voice, will likely enter their own arguments within the next two months. Meanwhile, a new slate of laws will trickle out of the 2023 session. Unlike last time, though, it’s doubtful voters will notice much difference. The focus of the election security debate nationally has pivoted to internal processes — voting machines, digital records, post-election audits. Lawmakers tailored their efforts accordingly, but the majority of 2023 bills that did pass had bipartisan support and an occasional thumbs-up from county election officials, who will ultimately feel this latest series of changes the most.
—Alex Sakariassen, Reporter
By the Numbers 🔢
Number of unlicensed teachers working in Montana public schools as of Dec. 1, 2022, according to a presentation delivered to the Board of Public Education by the Office of Public Instruction Friday. The number continues a five-year upward trend (the statewide total in 2018 was 71 unlicensed teachers) and contributed to accreditation deviations for nearly a quarter of Montana’s 813 schools. The presentation also showed another uptick in the number of educators teaching outside their area of expertise, with increases in the content areas of math, English and social studies. OPI accreditation specialist Ellery Bresler attributed the increases to Montana’s ongoing teacher shortage, and told the board that 79% of this year’s deficient accreditation scores were due to educator licensing issues. The board was also briefed on OPI’s plans to roll out a new system for gauging school quality that includes family and stakeholder engagement and potentially makes it easier for schools to gradually improve their accreditation standings.
—Alex Sakariassen, Reporter
Following the Law ⚖️
The tussle between lawmakers and Gov. Greg Gianforte over how the state will spend more than $50 million in marijuana tax revenue escalated a notch when Wild Montana, a Helena-based nonprofit that had backed a proposal to put substantial allocations toward conservation initiatives and county road maintenance, sent a letter to Gianforte via a law firm in Helena.
About 9 out of 10 lawmakers backed Senate Bill 442, but Gianforte vetoed it on what ended up being the last day of the 68th legislative session. Gianforte wrote in his veto letter that it’s inappropriate for the state to use a statewide tax to feed into county infrastructure coffers. He’s also argued that funding for wildlife habitat is in good shape, while other state responsibilities remain underfunded.
In the letter, issued by Upper Seven Law, Wild Montana argues that the governor used “creative timing” to effectively leave SB 442 in veto override no-mans-land. Some, such as Senate Majority Leader Steve Fitzpatrick, R-Great Falls, have argued that lawmakers’ opportunity to override the veto expired when the Senate moved to adjourn. Others, such as SB 442 sponsor Sen. Mike Lang, R-Malta, argue that the veto hadn’t been noticed when senators voted on the sine die motion, and Secretary of State Christi Jacobsen should therefore comply with Lang’s call to poll lawmakers regarding an override.
Wild Montana belongs to the latter group, as do more than 2,500 individuals who signed a petition urging Gianforte to give the Legislature another opportunity to weigh in.
There is no constitutional directive for this particular circumstance “only because the Constitution does not deal in absurdity,” Upper Seven’s letter reads. “Nothing in Montana law suggests that there are circumstances in which the Legislature is simply out of luck and unable to respond to a veto.”
For its part, the secretary of state’s office has shown an unwillingness to get caught in the middle. In an email to MTFP, secretary of state spokesperson Richie Melby said that because the Legislature was still in session at the time of the veto’s release, the veto was never forwarded to Jacobsen — suggesting, essentially, that Jacobsen’s office is not in a position to comply with Lang’s request.
—Amanda Eggert, Reporter
In Case You Missed It ↩️
If you missed it earlier this week, our reporters joined forces with Montana Public Radio Wednesday evening for a live question-and-answer session about the now-concluded 2023 session of the Montana Legislature. There’s plenty of discussion there about everything from Rep. Zooey Zephyr to energy legislation, housing bills and whether the session actually was as contentious as it seemed from the outside looking in. Also, keep an eye out for a cameo by Eric Dietrich’s cat.
The Viz 📈
The federal emergency declaration for the COVID-19 pandemic expired Thursday, bringing a close to a three-year era of sometimes-drastic public health measures intended to contain the virus.
Since the first COVID-19 cases were reported in Montana in March of 2020, state officials have counted more than 333,000 cases of COVID-19. Many more cases have gone unreported, particularly as at-home tests for the virus have become widely available and the severity of the pandemic has waned. According to the U.S. Centers for Disease Control, the known death toll from the pandemic has totaled 3,843 Montanans since the beginning of 2020.
In Montana, the virus has struck in several waves. The recorded case counts in the largest spikes dwarfed the early pandemic transmission that spurred then-Gov. Steve Bullock to issue a stay-at-home order in March 2020 and subsequently enact a statewide mask mandate that July.
The end of the public health emergency has various implications: Rapid tests for the virus will no longer be available for free, but may be covered by private insurance. States including Montana will also now be allowed to remove ineligible recipients from Medicaid rolls after being prevented from doing so for the past three years.
Some public health officials stress that the end of the federal designation does not mean the COVID-19 virus is eradicated — through, as Billings-area public health office Riverstone Health noted in a release this week, the virus has generally mutated toward strains that are more contagious but less likely to cause serious illness or death.
Riverstone said it’s aware of 66 Yellowstone County residents who tested positive in the last week of April, and also said 16 people in the county have died from the virus since the beginning of this year. The agency said it will continue to offer vaccines and boosters free of charge.
—Eric Dietrich, Deputy Editor and Mara Silvers, Reporter
Verbatim 💬
“It’s just been so helpful for my mental health. I actually want to talk to people now because before I was like so reserved and closed off … Now I’m at like every basketball game and volleyball game with the band, having a lot of fun. I’m going to be a section lead. Without this care, none of that would have ever happened.”
—Scarlet van Garderen, 16, one of the plaintiffs challenging Senate Bill 99, which bans gender-affirming medical treatments including puberty blockers and hormones for transgender minors. The lawsuit was filed Tuesday in Missoula, the state’s Fourth Judicial District.
On Our Radar 
Amanda — In the last couple of years, conversations about predator management frequently turn to whether carnivores like wolves help limit the spread of chronic wasting disease, an always-fatal disease that infects deer, elk and moose. High Country News recently published an interesting piece on research wildlife biologists in Wyoming are conducting to better understand the relationship between CWD-sickened ungulates and mountain lions.
Alex — About a month back, I checked in with soon-to-be-former Kalispell Schools Superintendent Micah Hill regarding his new post heading up Missoula County Public Schools. This week, the Flathead Beacon filled in another piece of the puzzle: As Hill prepares to move south, former Frenchtown School Superintendent Randy Cline will be stepping into Hill’s old shoes for a year.
JoVonne — A First Nations journalist was awarded a Pulitzer Prize and a Peabody Award for audio journalism early this week. Connie Walker, Okanese First Nation (Cree), and her reporting team at Gimlet Media, created a podcast about Walker’s father and his experience at St. Michael’s Indian Residential School in Alert Bay, British Columbia. CBC News reported on Walker’s reaction to the achievement.
Eric — One implication of artificial intelligence-powered text generators like ChatGPT is that it’s getting really, really easy to flood the internet with bulls**t. This Washington Post story discusses some fascinating — and terrifying — examples.
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