Montana Senate passes bill creating top-two primary in Tester’s 2024 U.S. Senate race
Republicans in the Montana Senate this week revived and endorsed previously stalled legislation that would provide for a top-two primary in the 2024 race for the U.S. Senate seat held by Democrat Jon Tester.
Senate Bill 566, sponsored by Sen. Greg Hertz, R-Polson, is meant to be a “test run” of a new democratic process in the state, Hertz said. The Senate State Administration Committee voted to table the bill Friday evening, but took it off the table Monday morning and passed the legislation on to the full Senate, where it received a favorable vote mostly on party lines Monday evening.
The bill would create a primary in which the two candidates who receive the most votes advance to the general election, regardless of their party affiliation. In current partisan elections in the state, the victor of each party’s primary advances to the general election ballot. The candidates in the top-two primary would still be able to declare their partisanship. The scenario envisioned in the bill would be a potentially partisan version of elections for district and state Supreme Court seats in Montana. In races for a seat on the bench, a series of nonpartisan candidates challenge each other in a primary, with the top two advancing to the general election.
The bill as written discusses only U.S. Senate elections and sunsets in 2025. That means the law would only apply to the 2024 race for Tester’s Senate seat. It would not apply to the race for Republican U.S. Sen. Steve Daines’ seat in 2026. Daines is the chair of the National Republican Senatorial Committee, the GOP organ that helps elect Republicans to the U.S. Senate. A spokesperson for the NRSC did not return a request for comment.
In all likelihood, the change would primarily impact the electoral viability of the Montana Libertarian Party, as the only third party that regularly qualifies for the ballot in Montana.
Hertz testified in committee Friday that if the state can’t enforce term limits on U.S. senators, his proposal would at least ensure that the victor of the U.S. Senate race has majority support in the state.
“It always bothers me that sometimes our statewide elected officials don’t end up with the majority vote,” he said Friday.
“Partisan power grab"
Three Montana U.S. senators have won their elections with less than a majority vote since 1992, Hertz said during the bill’s hearing Friday: Max Baucus in 1996 and Jon Tester in 2006 and 2012. Both Baucus and Tester are Democrats.
(Tester, in his 2018 victory, had over 50% of the vote. U.S. House Rep. Ryan Zinke, a Republican, received 49.6% of the vote in his successful 2022 campaign over Democrat Monica Tranel and Libertarian John Lamb.)
Sunsetting the bill in 2025 will allow that year’s Legislature to evaluate its impact and decide whether to continue or expand the top-two primary system, Hertz said.
Hertz said Monday that some of the lawmakers who voted against his bill in committee but then brought it off the table Monday were initially confused.
“Members didn’t quite understand the bill,” Hertz said. “Although we had a good hearing, I think Friday evening some people were still confused about it. Once they understood the bill and what I was attempting to do, they changed their minds and agreed to take it off the table.”
Hertz’s bill passed its second reading vote in the Senate Monday evening, 27-23, with all Democrats and several Republicans in opposition.
“Let’s just call this bill what it is — nothing but a partisan power grab,” Sen. Ryan Lynch, D-Butte, said in opposition to SB 566. “When we look at the termination date … it’s not insignificant that there’s one statewide elected official who’ll be part of this.”
Sen. Carl Glimm, R-Kila, defended the bill on the floor.
“I think the only reason you should be scared of it is if you don’t think your guy can win,” he said.
One of seven Republicans to vote against the bill, who requested anonymity “for fear of retribution by party bosses,” criticized the proposal as being “narrowly crafted by design” and said it would take citizens’ voices away.
“That, coupled with national party leaders talking about putting an emphasis on recruiting high net-worth individuals [to run for Montana’s U.S. Senate seat in 2024], seems to be designed to eliminate good home-grown candidates, which flies in the face of how we traditionally do business in Montana,” the senator said.
The race for Tester’s seat is one of a small number of contests in the upcoming campaign cycle that could help determine the partisan leadership of the U.S. Senate. Tester has already announced his intent to run for re-election. Political observers have floated several possible Republican challengers, including current Montana congressmen Ryan Zinke and Matt Rosendale. Daines’ NRSC, Axios reported last month, is working to recruit Tim Sheehy, a former Navy SEAL and the CEO of Belgrade’s Bridger Aerospace.
Tester’s campaign declined to comment on the legislation.
Hertz repeatedly emphasized Monday that his only interest in running the bill is ensuring that the winner of the 2024 Senate race wins a majority of the vote. He said he initially wrote a version of the bill that applied to additional statewide offices, but determined that would be too significant of a change.
Legislative drafting documents for the bill confirm that it started with a broader purview. But on March 26, lobbyist and former Montana GOP Executive Director Chuck Denowh — who has worked for previous campaigns of both Daines and Rosendale — wrote Hertz and legislative drafters to request that the bill be modified to apply only to the U.S. Senate race and sunset in 2025. Hertz approved of the changes.
Denowh, a lobbyist with the Montana Group, did not return a request for comment Monday. Hertz acknowledged working with Denowh on the bill, but said he didn’t recall that it was Denowh’s idea to add the sunset date.
The bill has a small revenue component — it increases the candidate filing fee for U.S. Senate by 0.1% of the total annual salary of a U.S. senator, netting the Montana secretary of state’s office an expected $2,000 in 2024, according to the bill’s fiscal note. Drafting correspondence indicates that Hertz added the filing fee increase later to qualify the bill as a revenue bill.
Revenue bills, along with resolutions and constitutional amendment ballot referrals, have a later legislative transmittal deadline than general bills, which had to pass out of their chamber of origin by March 3.
Montana’s 2012 U.S. Senate race is potentially instructive as to the purpose of the bill: Tester beat Republican Denny Rehberg 48.6% to 44.9%. In third was Libertarian Party candidate Dan Cox, who received 6.6% of the vote.
Sid Daoud, a Kalispell city council member who chairs the Montana Libertarian Party, testified in opposition to SB 566 Friday, painting it as an effort to block Senate candidates from his and other third parties from general election ballots.
“The bill primarily affects third parties that already have ballot access,” he said. “In an effort to knock Sen. Tester out of the next Senate race, Sen. Hertz is attempting to remove the potential Montana Libertarian Party candidate from taking a percentage in what is expected to be an extremely tight race.”
Other opponents — liberals, conservatives and libertarians alike — criticized the bill as a brazen political maneuver.
“Why would we, why should we, change the rules on a single election for a single voting cycle,” testified activist Shani Henry. “If you are so concerned by a campaign victor receiving less than 50% of the vote, why wouldn’t we have done it before, why wouldn’t it apply to other elections, such as the most recent western congressional district election? This bill oozes ill intention. I’m not sure I exactly understand what that ill intention is, but I think it’s a bad idea all the way around.”
Proponents of the bill in committee included Montana GOP Executive Director (and former Daines staffer) Danielle Tribble, Montana Department of Justice senior policy adviser Stephanie Cote and Broadwater County Clerk and Recorder Angie Paulsen.
“When it comes to the U.S. Senate race, which is now our only statewide election for Montana’s voice in D.C., it only makes sense to have the top two candidates with the most votes advance to the general election,” Tribble testified. “If a candidate is going to represent Montanans in the U.S. Senate for the next 6 years, that person should have to earn more than 50% of our votes across the state.”
Conservative hardliner Sen. Theresa Manzella, R-Hamilton, asked Tribble Friday if the party’s executive board took a vote on whether to support the bill. Tribble said she didn’t believe so, but that MT GOP chair Don Kaltschmidt directed the party to weigh in on the proposal.
Manzella ultimately voted no on the bill in committee, along with Sens. Mark Noland, R-Bigfork, and Shelley Vance, R-Belgrade, both by proxy. Those defections, along with unanimous opposition from Democrats, was enough to halt the bill’s progress Friday.
But that had changed by Monday, when the committee marshaled enough votes to take the bill off the table, 6-4. Vance on Monday acknowledged voting against the bill by proxy Friday, but said the bill should nonetheless advance to the floor.
“I actually think this is bigger than this committee,” she told the committee. “This is a big deal. I mean, it’s a big conversation, and I would really like to hear that conversation on the floor.”
“Weaponizing our third-party candidates"
Hertz directed questions about Denowh’s interest in the bill to Denowh, who could not be reached for comment. Denowh requested changes to the bill on multiple occasions, though it’s not clear from drafting documents what all those changes were.
Denowh has several lobbying clients, according to the state’s database, including one called Majority Vote Montana — a Montana nonprofit registered to Denowh that has little online presence.
Majority Vote Montana has spent nearly $30,000 on lobbying this cycle, all related to a series of similarly flavored bills: SB 566, House Bill 598 and Senate Bill 565, among others.
SB 565 is another Hertz bill that passed a second-reading vote in the Senate Monday. It would increase the number of petition signatures required for third-parties to hold primaries. Hertz pointed to the Montana GOP’s bankrolling of Green Party candidates in 2020 and the Montana Democratic Party’s support for Libertarian John Lamb in the 2022 Monica Tranel-Ryan Zinke race as justifications.
“In my short political career of about 15 years here, what I’ve noticed is both major parties are weaponizing our third-party candidates,” he said on the floor.
Senate bills 565 and 566 both need to clear one more vote in the Senate before entering the committee process in the House.