Bill to change Supreme Court races gets first hearing in House Judiciary

Voters could decide if Supreme Court elections were to be district races; similar measure ruled unconstitutional in 2011e

By: - February 10, 2021 6:41 pm

The Old Supreme Court Chambers in the state capitol in Helena (Photo by Martin Kraft, Wikimedia Commons license).

Billings Republican Rep. Barry Usher is trying to revive a previously failed effort to change how Montana elects its state Supreme Court justices.

Usher introduced House Bill 325, which would send the voters a legislative referendum to decide if they want state or district-wide supreme court elections, to the House Judiciary Committee Wednesday.

He argued that district races would make for a more diverse Supreme Court that is more aligned with the electorate.

“My intent is to make sure that the voters can meet and understand who they’re voting for instead of just a name on a ballot,” Usher said. “I want to make sure the Supreme Court does reflect the diversity (of Montana), both geographic and upbringing.”

No one testified on behalf of the bill, but Usher said he spoke with multiple attorneys privately who said they thought it was a good bill, but were not willing to testify on it publicly since the Supreme Court had already struck down a similar effort.

Along with constitutional concerns about the bill, opponents argued the elections should be statewide because the Supreme Court has statewide authority.

Ed Bartlett, who testified on behalf of the State Bar of Montana and district judges of Montana, said it makes sense to hold district-wide elections for district court judges because they only hear cases from that district. But said, “contrary to that, Supreme Court justices have cases from virtually every county in the state. They represent the issues statewide. Their rulings impact the state statewide.”

The bill would split the state into seven districts, four of which are likely to vote Republican.

In 2011 voters attempted to eliminate statewide Supreme Court races, but ruling on itself, the state Supreme Court found it unconstitutional to require a judge to reside in a specific district.

Because of that ruling, Usher removed the requirement from his bill. However, a legal note attached to it still raised constitutional issues within the bill saying it “presents issues that were held unconstitutional” in the 2011 effort.

In the 2011 ruling, the Supreme Court wrote, “this attempt to alter the structure of the Supreme Court by making it into a representative body composed of members elected from districts is likewise facially unconstitutional.”

Usher was unfazed by the constitutional arguments.

“We’re not here to find if it’s constitutional … I find it appalling that any of us think we shouldn’t let the voters decide,” Usher said.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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