- [Anna] Coming up next on "Impact," Montana's elections could look very different if voters approve proposed changes on the ballot this November.

- We need change and it's got to be fundamental change.

- [Anna] And voters have several choices to make on the future of Montana's embattled Supreme Court.

- Judiciary is the mortar of our constitutional democracy.

In other words, it holds it together.

- An activist court is, I think, ultimately bad news for the state of Montana.

- [Anna] Those stories next on "Impact."

- [Announcer] Production of "Impact" is made possible with support from the Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans.

And viewers like you, who are friends of Montana PBS.

Thank you.

- Welcome to our third season of "Impact," Montana PBS's news and public affairs series.

I'm Anna Rau.

This fall, a bipartisan group of Montanans wants voters to approve sweeping changes to the state's election system, reforms that they say would strip power from political parties.

Montana PBS's Stan Parker reports.

- [Stan] Red Lodge resident, Martha Brown, might lean left of her surroundings in solid red Carbon County.

But thanks to growing up on a ranch in Eastern Montana, being a political minority is nothing new.

- Even though I didn't always choose the same candidates that my siblings did, I felt like we could always discuss it.

We always had good discussions about it.

And in the last, I don't know, I guess maybe I've noticed this since I've been back in Montana, there seems to be less of that give and take.

- [Stan] Those feelings are part of why she's helping gather support for two massive election reforms on the ballot this fall, CI-126 and CI-127.

- If you wonder why we have polarization, why we have division, why we can't solve hard problems, it has to do with the system we use to hire people for the important job of governing - [Stan] Republican Frank Garner is a former state lawmaker and retired police chief.

Now he's helping lead Montanan's for Election Reform, the bipartisan group behind the two proposed amendments to the state constitution.

Their goal, nonpartisan primaries and the majority winner requirement for the general election.

We'll break that down in just a moment.

- Vote yes in November and we'll be able to vote person, not just party.

- [Stan] Despite most of Garner's fellow board members being former Republican lawmakers, some of the loudest opposition is coming from the leadership of his own state party.

Here is Chairman Don Kaltschmidt.

- We have a great system right now.

You know, I'm from a blue collar background.

If it isn't broke, don't fix it.

- [Stan] For more than 100 years, Montana has held separate primary contests for each party.

But under CI-126, everyone running for office would go on the same primary ballot, and then the top four in each race, no matter their party, would go onto the general election.

Taking those ideas one at a time, why all the candidates on one ballot?

- When I got my ballots for the primary, I received four ballots.

I had to choose one of those to vote on.

I'm excluded from considering anyone else on any of those other ballots.

How do I, as a voter, hold those people accountable or reinforce good behavior when I can't even vote for the majority?

- [Stan] And why advance the top four?

Garner wants more competition in the general election because more and more races are effectively decided in the primaries where less people vote.

- You use the Eastern District Congressional Race as an example, right?

Where you, in a primary, you had a minority of people voting for a person who's gonna move on to the general election in one party and is functionally not gonna have any competition.

None.

- [Stan] That dynamic is glaringly evident this year.

The Democrat in that race, John Driscoll, has already said he's going to lose to Republican Troy Downing.

If Montana had a top four system, it wouldn't just be these two in the race, but also say Denny Rehberg and Stacy Zinn, three Republicans and a Democrat.

A top four system wouldn't change that this area is safely red, but it would mean that Republican candidates would have to appeal to all voters to win, not just the primary voters who skew more partisan.

- I can't just pay attention as a candidate to just the primary voter or just what happens in the primary.

I have to worry about the general election now because of competition too.

So I have to govern more broadly.

I have to talk to more people.

- [Stan] But with three Republicans and one Democrat running in a deep red district, what if the Democrat won just because the conservative vote split three ways?

That's part of why there's a second initiative, CI-127.

- And CI-127 says simply that we have to have a majority winner at the end.

And we believe that's important because it causes our representatives to have to build coalitions, govern more broadly, and to be able to say that they enjoy the support of a majority of people.

- Getting to a majority in a four-way race is not a straightforward prospect, and CI-127 by design doesn't address it.

It leaves that up to the legislature and there are two apparent routes lawmakers could take.

They could enact runoff elections done with just the top two candidates, like Georgia does.

Or they could do something like Alaska, where voters rank candidates in order of preference.

It's basically a runoff without another election done by looking at voters' second or even third choices.

And it's that link to rank choice voting that has opened up a line of attack for GOP leadership.

- This is back door rank choice voting.

They can call it top four, they can call it whatever they want, but at the end of the day, I've talked with them and they basically told me that their end goal is ranked choice voting.

- [Stan] Garner stresses ranked choice voting is not on the ballot this fall.

- Ranked choice voting does not appear in either one.

Period.

It's just not true.

The only way something like that could happen is if the legislature makes that decision.

- [Stan] Alaska tried ranked choice for the first time in 2022.

Observers disagree on the biggest lesson from that race.

Critics like Kaltschmidt say even though more voters picked Republicans as their first choice, the Democrat won.

Others will point out that the race was decided by about 15,000 ticket splitters, those who picked a Republican as their first choice and a Democrat as their second.

It revealed a small slice of voters, but enough to swing a close race, that voted person over party.

The debate continues in Alaska, as this fall, voters will decide whether to roll back their changes.

Whether Montana would go ranked choice or runoff elections would be a whole other debate.

And it's one reformers are happy to leave for another day.

- Sure, you can, you know, wring your hands about that, but other states have done it.

We'll figure out how to do it.

If there's a will, there's a way.

And that should be the first question.

Is there a will?

And I think it's really important.

- [Stan] Mary Sheehy Moe was recently the DNC committeewoman for the State Party.

She supports both initiatives.

- We cannot be controlled by our political parties.

They should be a vehicle for putting a message forward.

And increasingly, it's just that (laughs) "Aye, aye, sir."

And I think that turns off, most people don't wanna live and breathe politics.

- [Stan] At the heart of these reforms is an attempt to erode the role of political parties in elections.

Primaries would no longer be about picking party nominees, just a way to winnow the field.

Kaltschmidt sees no reason to ditch the party paradigm.

- The Republican Party has their platform.

The Democrats have their platform.

The Libertarians have their platform.

I think all of us need to look at which one do we mostly identify with.

And that has been a system that's worked very, very well in our state and we've had great representation of this.

- [Stan] The state Democratic party hasn't taken an official stance.

Former lawmaker, Dave Wanzenried, sees this as a misguided attempt to change voter behavior.

- Well, I think they're a substitute for the hard work that needs to be done, frankly.

It'll be easy for us to vote for that and say, "Well, took care of that, now onto the next thing," and leave it up to somebody else to actually implement it, not pay attention to the details.

And again, my concern is, we have been persuaded, as voters in Montana, to incorporate all kinds of things into our constitution, thinking, "Yep, that's it," only to find out five years, 10 years, 20 years later, maybe we shouldn't have done that.

- [Stan] Other Democrats worry these reforms could promote more moderate Republicans that would be harder for the Democrats to beat.

- There's many Democrats who feel like that, you know, that's going to further weaken our chances of winning.

I think it's more important to believe in your message and to make sure that your message is reflective of the majority of Montanans.

How do you argue against the proposition that every voter should be able to vote on the full array of candidates?

And how do you argue against the proposition that the person who is elected should have been elected by the majority of us?

- Because you have 40% of Montanans, don't forget, that don't identify with a party.

Those people feel completely disaffected by our current voting system.

- What do you say to maybe independent voters who are in that situation?

- I'd say you have to pick a side.

- [Stan] Doug Oltrogge of Ballantine considers himself an independent voter.

- Over the last 24 years, I've probably voted the majority Democrat, but as time has gone on, I have just gotten more and more disenfranchised with both of the two parties.

- [Stan] For Independents, since so many races are decided in the primaries, picking a primary becomes a fundamental choice about which races to have a say in at all.

- You know, I think I'm gonna be filing my Republican primary ballot on the hope that for this representative in the congressional district that I can at least have an impact on that.

One of my favorite teachers used to always say, "Go vote.

It'll make you feel big and strong."

And anymore I feel like it makes me feel a little depleted, like it's taken more out of me than what they're gonna turn around and put back in.

- People are fed up with politics, but at the end of the day, we got a dang good nation here and we have a good system.

It's not perfect, as I said before, but I think we just have to hang in there.

- [Stan] Kaltschmidt also has another missive.

Follow the money.

- CI-126 is backed by elitists that want to control the people of Montana and the people across America.

If we look at who's behind this, they're dark money groups.

- [Stan] Of the roughly $5 million raised by Montanans for Election Reform, the vast majority has come from just two out-of-state outfits that don't disclose donors.

Garner says, despite this, it's still Montanans in the driver's seat.

- So the decisions on this are made by the board and the entire idea about top four came from this group in our coalition.

It should not come as a surprise to anybody that the people in power don't wanna see more competition.

I want you to feel like it matters what you say, not what somebody at the top of a party or government officials says.

- [Stan] Those sentiments echo the debate Montanans and reformers across the country were having more than a century ago in the first decade of the 1900s.

- Montanans had been through so many corrupt election cycles and there was this growing sense of frustration that my vote doesn't really count.

- [Stan] At that time, parties picked candidates in smoke-filled convention halls, not at the ballot box.

- Well, the conventions were forums for the insiders to get together and handpick their cronies.

Although you have to give credit to Montanans for not just rolling over and playing dead.

We put up a hell of a good fight.

- [Stan] In 1912, voters took matters into their own hands and passed a slate of progressive reforms, including the direct primary system that continues to this day.

As the reforms took effect, a (indistinct) editorial in "The Anaconda Standard" admonished, "If the people do not turn out to direct primaries and take a deeper interest in them than they customarily did in the old convention system, then the politicians will quickly have matters in their own hands as strongly as ever.

The success of the new plan will rest with the people."

- As much good as these will do, they aren't gonna solve every problem.

We still have to have good people run.

We still have to work together to find solutions.

But right now we have a system that incentivizes the wrong behavior and we have to change that fundamentally - [Stan] For "Impact," I'm Stan Parker.

- And it's not just Montana.

Like history repeating itself, a push for election change is building in numerous states.

Election reform measures are on ballots in Idaho, South Dakota, Colorado, Arizona, and Nevada.

The Montana Supreme Court is locked in a power struggle with the Montana legislature.

Against this backdrop, two candidates are vying for the top job on the high court, the chief justice seat.

Montana PBS's Sam Wilson reports.

- [Sam] On a sunny weekday in August, the two candidates for Chief Justice of the Montana Supreme Court have brought their campaigns to very different corners of the state.

Also different are the pictures they paint of the court for voters.

- Your judiciary, our judiciary, is under an unprecedented assault.

It's a national playbook, it's a grab for power, and I will promise you this, that as your chief justice, I will maintain the independence of the judiciary, the integrity of the judiciary, and the ethics of the judiciary.

- The trend that I don't like in the Supreme Court is a court that is not as restrained and unbiased and fair and impartial as I'd like it to be.

- [Sam] Cory Swanson is serving his third term as the elected Broadwater County attorney and had worked as a deputy for two years under former Republican Attorney General Tim Fox.

He says the structure of the court system in Montana gives the Supreme Court particular influence.

- So in Montana, we don't have an intermediate appellate court.

Our cases start in the district court and then if the losing side wants to appeal, they can appeal to an appellate court.

A lot of other states, there's an intermediate appellate court.

In the federal world, there's an intermediate appellate court.

In Montana, there isn't.

All appeals go straight to the Montana Supreme Court.

So the Montana Supreme Court really has that function of being the first appellate court, but the final appellate court as well.

- [Sam] Jeremiah Lynch served as a federal magistrate judge in Montana for 13 years before retiring from the bench in 2019.

Before that, he worked as a private practice attorney in Great Falls.

- We are a constitutional democracy designed by the people of Montana in 1972 with the most marvelous constitution in the United States.

That constitution ensured that the judiciary be an independent, and emphasized, I emphasize, co-equal branch of government.

The judiciary is the mortar of our constitutional democracy.

In other words, it holds it together via the rule of law.

- [Sam] The current balance of powers was struck during the 1972 Constitutional Convention.

Mae Nan Ellingson was the youngest delegate at the convention and she argued for giving citizens more power through the legislature.

- I'm a big believer in legislative power because I was on the legislative committee and my big goal and our whole committee's goal was to raise the stature of the legislature because prior to 1972, it was the weak link.

- [Sam] Steve Fitzpatrick is the Montana Senate majority leader and says the balance of power has indeed shifted.

- I think if you look at it from a system of government point of view, judicial branch obviously exercises a check, both on the executive branch and legislative branch and vice versa.

We also serve as a check on the judicial branch.

The legislative branch has the ability to rewrite law in response to decisions, and we do it quite frequently.

I carry a bill, I think, almost every session, which is intended to modify or, I guess in our view, correct judicial decisions.

So I think in the grand scheme of things, they are the smallest branch and their power is not really what the other two branches have.

- [Committeeman] So again, this is the Senate Select Committee on Judicial Oversight and Reform.

Would like to go into some kind of ground rules of what we're doing here and how we're gonna .

.

.

- [Sam] The Senate Select Committee on Judicial Oversight and Reform was created in April, 2024 to corral what Republican legislators describe as an out of control court system.

The proceedings have put a fine point on the partisan tensions surrounding the judiciary.

- I can say, and I will say this publicly, that I'm highly disappointed in the Democrats for not showing up to this meeting.

This is an important meeting.

We have a responsibility to the citizens of Montana, and this is not about party politics at all, in any way shape.

- We hear about this leftist extremist court.

No way.

This is the most moderate court we've had in the 40 years of my practice.

When you see these attacks on the court, you see it every day in the paper.

The Senate Select Committee is gonna investigate the court.

About what?

Because they did their jobs?

- There is a certain level of hostility right now between the courts and the legislature, certainly between the Supreme Court and the legislature.

There's a lot of suspicion.

We need to get the air outta that balloon.

That's what I think that the Chief Justice needs to be able to do.

Well, because today, today we have a Montana with a lot of conservative elected officials.

But I can remember not long ago when it was the other way.

The election of 2008, anyone remember that?

And everyone said, you know, the Democrats are gonna reign supreme in Montana forever.

Well, as the political gate swings back and forth, as the policy arguments go back and forth, the Supreme Court should just do its job, not keep getting involved in putting its toe into the political war.

If you wanna change the law, don't run for the court, run for the legislature.

If you look at my background, I am a political conservative.

That should not be a factor that helps you decide a case or not a case.

Judicial conservative means really what I just talked about.

Deciding cases narrowly, relying on and sticking to your prior precedent, even if you don't agree with it.

So that's the key.

That's the whole point of precedent.

The contrast is judicial activists, which is, you walk in with an agenda, you walk in saying, "I'm gonna fight for this or I'm gonna fight for that."

- I have been criticized saying that I somehow have pre-judged.

I've not pre-judged anything.

What I have said is, I will follow the precedent of the Montana Supreme Court when it comes to the right of privacy.

I emphasize that.

I will say it again, particularly when it comes to women's reproductive freedom.

Armstrong confirmed, affirmed, and Weems says, a woman has a right within the parameters established by that case to make her own healthcare decisions.

It's a sound decision.

When I say I'm gonna follow precedent, I think the Montana citizens have a right to know I will follow precedent.

- Well, since I believe that the Supreme Court is the final arbiter of the Constitution and can protect the constitution against legislative encroachment or executive encroachment, I think the Supreme Court's probably the most important races on our ballot.

- And the thing I will tell you is, the court will change in November, one way or the other.

If I get elected, my goal will be to go in and remove politics as much as possible from Supreme Court cases.

- It's the strawman we all know about.

It's set up to make a false argument that the court is somehow out of control, the court's not out of control at all.

The court is a very sound court that I will be joining with your help.

- Woo!

- Yes.

(audience applauds) - [Sam] For "Impact," I'm Sam Wilson.

- In addition to the chief justice race, an associate justice seat is up for election this year.

Two current district court judges are vying for that seat, Katherine Bidegaray and Dan Wilson.

Rounding out the races on the high court, the clerk's position is on the ballot as well.

The clerk of the Supreme Court serves as an independent liaison with the public.

Helena attorney Erin Farris-Olsen is challenging the incumbent clerk Bowen Greenwood.

- Well, when I ran in 2018, I focused on the public information aspect and that is really where you see some market improvements that I'm happy about.

- It's not a position that very many people pay attention to and you know, if it's done well, then that's fine.

- [Anna] Montana is the only state in the country that elects its Supreme Court clerk, something that can inject a normally non-partisan position with a dose of politics.

- What I really enjoy is the opportunity to help Republicans, whether it's the Legislature's Committee on the judiciary or whether it's other Republican elected officials.

I enjoy the opportunity to help them know when they're not necessarily making the most effective argument they could, to help them understand the reality of how things work at the court.

- If you think about the scales of justice, I mean, it's almost like the scales are right there (laughs) in the clerk's office because the clerk is receiving the filings, is talking to people, is interacting with the district courts that hold the records that are important to a case.

And it's just this really incredible opportunity to make sure that everybody is up to have a fair shake before the Montana Supreme Court.

- That's all the time we have for this episode.

On the next "Impact," we'll examine the most controversial issue on the ballot this fall, enshrining abortion rights in the state's constitution.

And a write-in candidate enters the race for Congress in Montana's eastern district.

She's critical of the Democrat on the ballot who seems to have already conceded the race to the Republican.

We sit down with all three candidates.

Thanks for watching.

We'll see you next time.

(soft upbeat music) (soft upbeat music continues) - [Announcer] Production of "Impact" is made possible with support from the Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans.

And viewers like you, who are friends of Montana PBS.

Thank you.

(bright music)