Legislative Committee Supports Yet Another Version of Partisan Judicial Elections

House Bill 838 would apply only to the Supreme Court, and create a blanket primary process with two candidates moving to general election

The door to the old Supreme Court Chamber at the Montana Capitol. (Micah Drew/Daily Montanan)

Bruce Spencer, a lobbyist representing the State Bar of Montana, did not need to elaborate on his organization’s position on a bill before the House Judiciary Committee on Friday — he’s said it all before.

“I’m trying to think of something new to say,” Spencer told the committee. “I’ve got to be honest, I don’t have much.”

Spencer was testifying for at least the seventh time against a bill that seeks to make Montana’s judiciary more aligned with partisan politics. Another bill in the same vein was introduced earlier this week.

Friday’s hearing was on House Bill 838, introduced by Speaker of the House Representative Brandon Ler, R-Savage. The legislation would allow candidates for the Montana Supreme Court to run under a party affiliation, or under a nonpartisan label.

The bill would also create a new primary system for Supreme Court candidates, putting all candidates on a primary ballot regardless of which party primary a voter participates in. The top two candidates, regardless of party affiliation, would proceed to the general election.

“It’s my personal opinion that (judges) have already chosen a party to run under,” Ler said. “We see that time and time again with the way that the Montana Supreme Court operates, whether it’s them meddling in our rules, them pre-determining the outcome on the bench of different legislation we have, or the decisions that they make, which seem to be completely against the will of the majority of Montana voters.”

The bill had no proponents, but drew a dozen opponents during the hearing.

Many of the arguments put forth have been hashed out repeatedly in both the House and Senate so far this legislative session.

Three other pieces of legislation have sought to specifically make judicial races partisan. House Bill 295 failed to clear a House vote before transmittal, as did HB 751, which would have required Supreme Court candidates to declare a party affiliation.

Senate Bill 42, however, has had more momentum, sailing through the Senate — albeit on partisan lines. SB 42 requires judges at any level to attach a partisan affiliation to their candidacy.

Those bills’ proponents called them “voter education” bills, seeking to add transparency to elections that are conducted with seemingly less knowledge of candidates than other partisan races.

Ler said since he believes the judiciary is already partisan, voters should be made aware of that before they reach the bench.

But opponents pushed back against that characterization, saying judges make rulings based on the Constitution and the law, and should not be beholden to a party platform.

“Judges don’t make decisions on the basis of a constituency, and that’s what political parties are. They’re setting out values for a constituency,” said Al Smith with the Montana Trial Lawyers Association. “That’s not what judges do. They look at the Constitution, the law, the facts of the case. They should be free from political pressure.”

Speaking specifically to the characterization of partisan elections as voter education bills, Anne Sherwood, with Friends of the Third Branch, an educational organization focused on the state’s judiciary, said the claim voters can’t find information about candidates is disingenuous.

“This bill is also not going to increase voter education. It strains credulity that in today’s digital age, somebody cannot find information on these candidates,” Sherwood said. “… We have the internet. Now we have Twitter. Now we have Facebook. Now we have independent campaign spending.”

Spencer added the State Bar holds forums for Supreme Court candidates every election cycle — another way voters could learn about the candidates.

The House Judiciary Committee passed HB 838 out of committee on a 12-8 party-line vote.

Two additional bills related to a partisan judiciary met opposing fates in the Legislature. House Bill 39, which allows political parties to spend money on judicial races, was signed by the governor earlier this month, while House BIll 169, which would have let judges and judicial candidates take part in partisan activities, died in the Senate.

By Micah Drew for the Daily Montanan