Partisan judicial elections a moot issue after failing to reach deadline

Friday was the deadline for policy bills that have no budgetary implications to pass over to the other chamber. Four bills that sought to require or allow partisan judicial races each died along the way, either in committee or in a floor debate. The proposals were fueled by last session's extraordinary conflict between the Legislature and the judicial branch.

The bills presented through the first half of the legislative session primarily stood on Republicans' contention that voters are often empty-handed on information when they are considering nonpartisan judicial candidates and that a party affiliation would fill in the blanks. The Judicial Code of Conduct prohibits candidates from discussing on the campaign trail what they think — and by extension, how they might rule — on certain issues that are typically front of mind during election season. 

But the proposals also rode on the majority party's assertion that the judicial branch is stacked with left-leaning judges. The GOP has been able to get its priorities through the Governor's Office, but many of those ideologically driven laws have been stalled in the courts. 

"This is a voter transparency bill … to shine the light on the implicit bias that each one of us, every single person has," Rep. Scot Kerns, R-Great Falls, said in presenting his House Bill 595 on the House floor Thursday before it was voted down. The bill would require Supreme Court justices be nominated and elected on a partisan ballot, although the candidate could still declare themselves an independent. 

"Anybody that thinks our current Supreme Court, a number of them at least, are nonpartisan, probably also believes in the tooth fairy," Rep. Ed Butcher, R-Winifred, testified in support of Kerns' bill. 

At a press conference Friday, Democrats applauded the bills demise. Deep in the minority this session, Democrats have framed the Republicans' effort as one to hobble the one branch the GOP doesn't actively control. 

"That’s the last check on them and it’s designed in our constitution as an important check and balance, and they are doing everything they can to find ways to diminish the authority of our judiciary so they can have even more control," Senate Minority Leader Pat Flowers told reporters Friday.

Generally, moderates in the majority joined with Democrats to knock down the proposals. Freshman Rep. Wayne Rusk, a Republican from Ravalli County, said in a stately prewritten speech during Thursday's hearing that his opposition to Kerns' bill was in defense of the branch, not its office holders. 

"I acknowledge that candidates need a level playing field from which to run, but it is not achieved by installing a partisan teeter-totter on that field," Rusk said. "To sow the wind of mandatory partisanship into our courts is to ask a man to lean when he does not lean and would offer insult to those who are best qualified for the position."

Kerns' bill went down on a 46-54 vote on the House floor. That wasn't even the closest a bill came to passing through the lower chamber; Rep. Paul Fielder's House Bill 464, which would allow, rather than require, judicial candidates to declare a party, died on a 49-51 vote. 

Fielder's bill had the support of the Montana Freedom Caucus, a newly formed and steadily growing band of Republicans from the party's right wing. 

Two bills in the Senate have also died after varying degrees of endurance through the process. Sen. Daniel Emrich, R-Great Falls, also had a proposal to push partisanship into the judicial races, separated from the other bills by its requirement for a party declaration. That bill died 16-34 in the Senate on Wednesday. 

Another measure, Senate Bill 200 by Sen. Greg Hertz, R-Polson, failed to escape committee. That bill was by far the broadest attempt, opening all nonpartisan races, including county and city officials, to partisan races. 

House Minority Leader Kim Abbott, D-Helena, said it was "fun" to see the GOP's efforts fall flat before Friday's transmittal deadline. 

"It felt good to leave the building defeating a couple of bills to make the judge races partisan, and ideas that Montanans don’t like," Abbott said.

The majority party and its many factions, however, are not yet done tinkering with what will remain the nonpartisan branch.

Rep. Bill Mercer, a Billings Republican and former U.S. Attorney for Montana, said in a press conference Friday that he'd be carrying a significant proposal to change the state Supreme Court in the second half of the session.

"You will be seeing a constitutional amendment proposal in the second half which will seek to place on the ballot a proposal that Supreme Court justices be appointed by the governor and confirmed by the Senate," Mercer said.

"That's something to look for, and I think we will have other constitutional amendments that may encroach on that subject. So I guess I'd say stay tuned."