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November 30, 2023
Tensions ran high in Cascade County this week as officials worked to certify the results of recent municipal elections in Great Falls, Cascade and Belt. The county’s canvass took nearly seven hours in all, stretched across two separate meetings, and visibly tried the patience of observing voters and one county commissioner. That the process blew eight days past a state-mandated certification deadline has only intensified public calls for county officials to strip recently elected Clerk and Recorder Sandra Merchant of her election administration duties.
Public criticism of Merchant, the Republican who ousted 16-year Democratic incumbent Rina Moore last fall, has increased with each successive election in 2023. Concerned over the execution of a school board election in May, the Great Falls Public Library board requested a court-appointed third party to monitor its own levy election in June. Voters in two special water districts later filed a lawsuit alleging mismanagement in their own elections and demanding do-overs.
The latest turbulence involving the canvass began two weeks ago with a scheduling dispute, and continued this Wednesday as Commissioner Joe Briggs, for the second time, demanded that Merchant provide a more granular analysis of the ballots cast in neighborhood council precincts, given the narrow margin in one of those races. Merchant pushed back, insisting the commissioners had all the information necessary to complete the canvass. Briggs ultimately relented, “reluctantly” motioning to certify the municipal elections.
Merchant didn’t respond this week to multiple messages from Capitolized seeking comment. But one of her chief defenders, commission chairperson Rae Grulkowski, did call back. Last week’s scheduling delay, she said, was the fault of the commissioner’s office, not Merchant. Grulkowski also claimed that past county canvasses have been “rubber-stamp” affairs, and said the wrinkles this time around are the result of Merchant conducting the process according to state laws governing election canvasses. As for criticism about Merchant’s handling of other elections this year?
“Sour grapes, and lack of camaraderie,” Grulkowski said.
Grulkowski’s suggestion that past canvasses under Moore’s tenure as clerk and recorder didn’t follow state law has rankled Cascade County election watchdogs, who have repeatedly voiced their concerns at public meetings and an October rally outside the county courthouse annex. Merchant’s 2022 electoral victory came amid a swirl of conservative skepticism, including from Merchant herself, about the integrity of Montana’s elections. Now, the tables have shifted, with Merchant’s critics issuing a call to protect their local elections from mismanagement. A citizen group called the Election Protection Committee is pressing for commissioners to install a non-elected, nonpartisan overseer to take charge of Merchant’s election duties — a request Great Falls school board trustees made independently this fall, and one that Briggs, for reasons he insists are unrelated to recent difficulties, hopes to act on as a hectic 2024 election cycle bears down.
Jane Weber, a member of the Election Protection Committee and former Cascade County commissioner (Grulkowski is finishing out the final two years of Weber’s term following Weber’s retirement in January 2021), maintains the lawsuits and the multiple demands for a change in management prove the concern isn’t limited to her group alone.
“These are independent organizations and individuals who have a vested interest in having fair, accessible elections,” Weber told Capitolized. “Those aren’t sour grapes. That’s democracy.”
—Alex Sakariassen
Abortion on the Ballot?
The news that Montana abortion rights advocates are hoping to place a constitutional amendment on the 2024 ballot may have gotten buried ahead of the Thanksgiving holiday. But debates about the potential consequences of the maneuver — which could add explicit protections for abortion to the Montana Constitution — are percolating, even among some reproductive rights supporters. These people, though conceptually in favor of the initiative proposed by Planned Parenthood Advocates of Montana, expressed anxiety to Capitolized this week about the potential pitfalls of the gambit, given Montana’s particular legal and political landscape.
Montana is generally considered to have strong legal protections for abortion access: State courts have repeatedly upheld the 1999 Armstrong v. State decision, which found that abortion, as a medical procedure, is largely shielded from government interference under the state Constitution’s right to privacy. That precedent is why a series of Republican-sponsored restrictions on abortion have been halted in court over the last two years.
If Planned Parenthood’s initiative clears the procedural hurdles ahead but is rejected by voters, abortion rights experts told Capitolized, the protections outlined in Armstrong would not be directly impacted. Such a failure, however, could be a boon for Montana’s conservative anti-abortion movement and reinforce the agendas of hardline politicians returning to the Legislature in 2025, they say. If the amendment flops, observers say, opponents could see an opportunity to propose a constitutional initiative to ban abortion outright. In other words, an unsuccessful amendment could create cracks in the reproductive rights movement that widen over time.
Despite affirmative outcomes for similar initiatives in Ohio, Kansas and other states, abortion access supporters agree that a victory in Montana is far from guaranteed. The 2024 ballot will be stacked with the presidential race, hotly contested re-election bids for Democratic Sen. Jon Tester and Republican Gov. Greg Gianforte, two open Montana Supreme Court seats and other constitutional amendments. Funding a campaign to ensure abortion access in that environment will be expensive. Other political feuds may suck up television airtime and voters’ attention. And high voter turnout driven by up-ballot contests may work against the abortion initiative — Montana’s most recent experience with record voter turnout in a presidential election created a sizeable red wave for Republicans.
Planned Parenthood representatives have so far publicly expressed confidence that voters with a variety of political affiliations will support abortion access when the time comes. Initiative supporters indicate to Capitolized that their goal over the next 11 months should be to turn that hope into a nearly rock-solid guarantee.
—Mara Silvers
Broadwater County Attorney Enters SupCo Race
Broadwater County Attorney Cory Swanson announced his candidacy for Montana Supreme Court this week, setting up a contest between Swanson and former federal magistrate court judge Jerry Lynch for the court’s chief justiceship.
“When Montanans go to court, they expect a fair judge who will issue rulings based on the facts and the law, not on ideology,” he said Wednesday in a campaign announcement on the conservative radio show Montana Talks. “I’m committed to being a fair and impartial chief justice, who will interpret the law and not legislate from the bench. Montana voters should demand that of every judge and judicial candidate.”
Swanson, a 2004 graduate of the University of Montana law school, served as a deputy attorney general under Republican Tim Fox in 2013 and 2014, and began his tenure as Broadwater County Attorney the next year.
Reached by phone Thursday, he said he wants to provide voters with a choice for the open chief justice spot. Previously, only Lynch was in the race, following the bow-out of former state auditor John Morrison.
“Lynch has had a distinguished career,” Swanson said, “but I come from a different background, I present a good contrast.”
He noted that most of Lynch’s career on the bench has been spent as a member of the federal court system, and that Swanson’s recent experience as a local prosecutor gives him a fresh perspective.
There are two open seats on the Montana Supreme Court this election cycle, owing to the successive announcements by incumbent Chief Justice Mike McGrath and Associate Justice Dirk Sandefur that they would not seek re-election.
Judicial politics have reached a fever pitch in recent years, with a protracted separation-of-powers conflict over legislative subpoena power, a spate of constitutional challenges to laws passed by the newly empowered GOP legislative majority, and attacks by members of that party — including Attorney General Austin Knudsen — on the judiciary’s integrity and independence. Those critics often accuse the justices of “legislating from the bench” — in other words, handing down rulings that expand the meaning of the law rather than ruling strictly based on its text.
Swanson was unwilling to accuse the high court of any specific bias, but said voters want someone who’s willing to loudly state that a judge must be willing “to set aside their own preferences and decide a case” on the merits.
He also said he feels that some contemporary criticism of the judiciary is unfounded, and that judges inevitably have to interpret the law beyond what’s strictly written.
“The court should do its very best to leave the policy advocacy issues to the political branches, it should do its very best to interpret the statutes and evaluate them relative to constitutional claims,” he said.
As of Thursday, district court judges Katherine Bidegaray and Dan Wilson have declared their candidacies for Sandefur’s seat on the high court.
—Arren Kimbel-Sannit
Zephyr Lawsuit Dismissed
A Helena district court judge last week dismissed a lawsuit challenging the Legislature’s censure of Democratic Missoula Rep. Zooey Zephyr during the final days of the 2023 legislative session.
The court determined that Zephyr’s censure, which barred her from the floor, anteroom and gallery of the state House of Representatives until the Legislature adjourned sine die, was effectively moot, owing to the end of the session a few days after the censure motion passed.
“Plaintiffs’ claims became moot when Zephyr’s censure ended,” Montana First District Court Judge Mike Menahan wrote in a ruling dated Nov. 22. “The Court cannot grant effective relief in this matter because there is no longer a ‘live’ controversy. Because of the fact specific nature of Plaintiffs’ claims, no mootness exception applies. Without a justiciable issue, this Court may not hear Plaintiffs’ case.”
Menahan also wrote that the Legislature has the constitutional authority to discipline its members, agreeing with a key argument in the Legislature’s defense against the lawsuit.
Zephyr, who in 2022 became one of the first two transgender people elected to the Montana Legislature, was an impassioned opponent of GOP-backed laws in the 2023 session that would have limited LGBTQ+ health care access and expression in a variety of settings across the state.
In April, during floor debate over Senate Bill 99, legislation that sought to ban gender-affirming care for transgender youth, Zephyr suggested that supporters of the bill would have “blood on their hands,” a reference, she later explained, to the increased risk of suicide that transgender and non-binary youth who do not receive gender-affirming care face.
House Speaker Matt Regier, R-Kalispell, asked Zephyr to apologize, but she declined. Over the ensuing days, Regier repeatedly declined to recognize Zephyr when she asked to speak on the House floor. The standoff culminated in a debate in the Rules Committee, a protest at the Capitol by Zephyr’s constituents supporting her right to speak, and, eventually, a successful motion to censure Zephyr. Zephyr’s participation for the remainder of the session was limited to remote voting.
Zephyr and a coalition of her constituents challenged the censure motion in May, arguing that the Legislature deprived them of their constitutional right to participate in government.
Shortly after, Menahan denied a motion to block enforcement of the censure, writing that the plaintiffs’ “requested relief would require this Court to interfere with legislative authority in a manner that exceeds this Court’s authority.”
—Arren Kimbel-Sannit
Tester’s ‘Toss Up’
The Cook Political Report, a prominent purveyor of nonpartisan election analysis, is now calling the 2024 U.S. Senate race in Montana a “Toss Up,” a change from the publication’s previous “Leans Democrat” assessment. Take that with a grain of salt: At this stage, it’s not even clear who incumbent Democrat Sen. Jon Tester will face in the general election. But the relabeling gives some indication of the headwinds that the D.C. set feels Tester, a three-term incumbent, is likely to face this cycle.
Cook Political Report editor Jessica Taylor wrote Thursday that Tester’s consistent ability to outperform other Democrats in Montana and the possibility of a bruising GOP primary could work in Tester’s favor, but that the state’s overall Republican lean and the growing name recognition of current GOP frontrunner Tim Sheehy are working against the incumbent.
That said, a recent Morning Consult poll identified Tester as the Senate’s fourth-most-popular member among constituents, and showed that respondents to the poll view Tester far more favorably than fellow Democrat President Joe Biden.
—Arren Kimbel-Sannit
On Background
Cascade County blows state deadline for election canvass: Delays in certifying Cascade County municipal elections have fueled criticism of the county’s recently elected right-wing county clerk and recorder, Montana Free Press reports.
Abortion rights group proposes constitutional amendment to protect access: Abortion access advocates hope the recent success of constitutional amendments to protect the right to the procedure in other states presages the success of a similar proposal in Montana, per MTFP’s Mara Silvers.
House Republicans bar Democratic Rep. Zooey Zephyr for breaching decorum: The final days of the 68th Legislature were colored by the GOP majority’s decision to censure Democratic Rep. Zooey Zephyr, the first transgender woman elected as a Montana state lawmaker.