The door to the old Supreme Court Chamber at the Montana Capitol. (Micah Drew/Daily Montanan)
Leaders in Montana’s Republican Party have made it clear that when the Legislature disbands at the end of the 69th session, the plan is to assign the judicial branch in the state shades of red and blue.
Speaker of the House Brandon Ler, R-Savage, and Senate President Matt Regier, R-Kalispell, outlined the party’s plans for judicial reform early on in the session while Republican Gov. Greg Gianforte told lawmakers during his State of the State address that he wanted a bill on his desk that “empowers Montana voters to know a judicial candidate’s political party.”
But among the 150 lawmakers holding forth in the Capitol, the appetite for injecting additional politics into the court system appears to be mixed.
Last week, the Senate and House each debated versions of legislation that would attach political party affiliation to justices, splitting their votes.
Senate Bill 42, sponsored by Sen. Daniel Emrich, R-Great Falls, passed the Senate this week 28-22 with four Republicans voting with all Democrats against the bill.
Under the proposed legislation, all judicial candidates for the Montana Supreme Court, a district court and all justices of the peace would be required to declare a political party and be nominated on a partisan ballot.
The bill was strongly endorsed by Gianforte at a press conference on Thursday when he applauded Senate GOP leaders for working with him to move the legislation through the upper chamber.
But in the lower chamber, House Bill 295 failed to pass the floor in a 47-53 vote, where 11 Republicans opposed the bill.
Similar to SB 42, the House version, carried by Rep. Paul Fielder, R-Thompson Falls, would have allowed judicial candidates to indicate their party affiliation, and would list “undisclosed” next to any candidate who does not declare a party.
During floor debate, Speaker Ler said the bill was necessary because he believes the courts, especially the Supreme Court, has been overreaching its constitutional jurisdiction, and the bill would “align that court with the values that Montanans hold.”
“I believe that our courts are already partisan, especially our Supreme Court in this state,” Ler said. “And they have no bones about hiding.”
Many supporters of the partisan judicial bills in both chambers said it was an issue of transparency — that the top questions voters ask during the election season is for information on judicial candidates.
“Right now, there is not much information you can get from a judge even if you go listen and talk to them. Their code of conduct, their judicial canons, they can’t speak about how they might rule on a case,” said Sen. Greg Hertz, R-Polson during Wednesday’s debate on SB 42.
But knowing partisan affiliation, Hertz said, lets voters understand more about the principles of the candidate, letting them make better informed decisions.
Opponents to partisan judicial elections often invoked a message from Montanan’s newly-elected Chief Justice of the Supreme Court Cory Swanson, who last month warned lawmakers against going down that road.
“The judiciary should remain nonpartisan despite the almost irresistible pull of partisan spending and messaging in these highly contested campaigns,” Swanson, a former Republican county attorney, said during a joint session.
“The judiciary does not want this,” Sen. Cora Neumann, D-Bozeman said. “They want each of our branches to be healthy and independent and trust each other to make good decisions.”
Sen. Laura Smith, D-Helena, repeated an opponents’ talking point that the broader electorate does not support the idea, citing several survey results.
One 2023 survey conducted by Montana State University, Montana Public Interest Research Group and the League of Women Voters showed that 71% of Montanans did not believe Supreme Court justices should run with a political label, and 89% said justices should not consider politics in their decisions.
More than half of respondents to that survey reported voting for President Donald Trump in 2020, while 34% reported voting for former President Joe Biden.
“Looking at the data on this, the majority of Montanans don’t want their courts to be political,” Smith said. “One of the primary things that people don’t want in their lives, any more than is necessary, is politics.”
Senate Minority Leader Pat Flowers, D-Belgrade, equated the judicial branch to baseball umpires.
“If the Yankees are playing the Red Sox, I don’t want to have to wonder whether it’s a Yankees umpire or a Red Sox umpire,” Flowers said. “I want to know that they’re calling balls and strikes straight.”
Sen. Wendy McKamey, R-Great Falls, said she’d put a lot of thought into the issue recently and had recently changed her mind on the bill.
“Initially I said that I prefer to keep justice blind,” McKamey told her colleagues. “I have seen and witnessed that the judges sitting on the Supreme Court bench, even though they have their personal opinions, are setting aside their personal opinions and looking at the Constitution and making those decisions. And I trust that. So I will be yes.”
The Senate bill passed and will be taken up by the House.
The House bill died in the floor vote, but another attempt to make Supreme Court elections partisan, House Bill 751, will have a hearing before the House Judiciary Committee on Monday.
A related bill allowing political parties to donate to candidates, HB 39, passed both chambers and has been transmitted to the governor’s desk.
Another bill to change the way Supreme Court judges are selected would put the questions to voters about changing from an elected system to one where judges are nominated through a bipartisan committee and then appointed by the governor. No action has been taken on House Bill 506 since its committee hearing last week.