As the Washington Post recently explained, abortion is protected in the state under a 1999 Montana Supreme Court ruling known as Armstrong v. Mazurek, and relying on that precedent, the seven-member body unanimously upheld a lower court ruling earlier this year that temporarily blocked a trio of anti-abortion bills passed by GOP lawmakers. In 2021, though, the GOP legislature voted to place LR-131 on this November’s ballot. Democratic Gov. Steve Bullock had vetoed a similar proposal in 2019, but his Republican successor, Greg Gianforte, has ardently backed anti-choice measures like this one.
The proposal declares, “A born-alive infant means an infant who breathes, has a beating heart, or has definite movement of voluntary muscles, after the complete expulsion or extraction from the mother.” According to its ballot summary, the measure also places “criminal penalties on health care providers who do not act to preserve the life of such infants, including infants born during an attempted abortion.” It’s already against state and federal laws to cause the death of a premature baby, but legislative Republicans insist that these rules don’t go far enough.
The referendum’s opponents argue that its passage would legally endanger physicians unless they take extreme measures to try to save infants who had no chance to live. “Who is going to be the ones deciding what reasonable care is?” asked Tim Mitchell, a Montana-based OB-GYN who has been a prominent foe of LR-131. “Is it going to be the state attorney general who is going to potentially look into cases, because anybody can file a complaint against a physician or providers who are involved in care of some of these very tragic circumstances?”
At a recent rally opposing the measure, a mother named Lea Bossler told the crowd about her decision to have her dying newborn spend her final moments with her outdoors, but had LR-131 been in place, her death “would have been extremely traumatic for everyone rather than beautiful and peaceful.” Bossler continued, “Legally forced repeated chest compressions and epi shots would have done nothing but overdosed, bruised and broken her already dying body.” A GOP state representative responded to these warnings by saying that if LR-131 wins, the legislature might make fixes next year to address some of these concerns.
No one appears to have released any polling about this ballot measure, though the Democratic firm Civiqs shows that 51% of the state’s voters agree abortion should be legal in all or most cases while 44% believe the opposite. Groups opposing LR-131 have raised $310,000 through late September, while Ballotpedia reports it “has not located a campaign in support of the ballot measure.”
Reproductive rights are also taking center stage in other contests. State Supreme Court contests are usually uneventful in Montana, but that’s not at all the case in the officially nonpartisan battle between incumbent Ingrid Gustafson, who was appointed by Bullock, and Republican Public Service Commission President James Brown. Another justice, conservative Jim Rice, is also up for an eight-year term, but his re-election has not been competitive.
The Supreme Court has served as one of the few checks on the GOP and Gianforte, whose 2020 victory made him the first GOP governor in 16 years, which is why Republicans have spent the last two years trying to reshape the court to their liking. Last year, the legislature even advanced a planned 2022 referendum to allow it to effectively gerrymander the chamber by switching from statewide elections to using districts drawn by lawmakers, but the high court threw it off the ballot in August as unconstitutional.
The exact ideological balance of the court is tricky to pin down. A 2020 study by Ballotpedia of past political involvement rather than ideological leanings concluded that three justices were “mild Democrats,” one was a “strong Republican,” and the remaining three—including Gustafson—were “indeterminate.” Similarly, an article in the Missoula Current a year earlier characterized three justices as liberal-leaning, two as conservatives, and two others as swing votes, with Gustafson again among that last group.
A victory for Brown alone, therefore, wouldn’t change the court’s balance of power, but Republicans are hoping it would be the start of a realignment. Gustafson backer Bob Brown, a former Republican secretary of state who has been a vocal critic of his party for years, explained the stakes to the Washington Post by noting, “You look at it and think, well, one justice wouldn’t make that much difference … But it won’t take that long.” Brown, who was the GOP’s 2004 nominee for governor, continued, “Five or 6 or 10 years at the most, that hard-right element owns the Supreme Court in Montana.”
Well-funded conservatives are acting accordingly, because outside groups supporting James Brown have so far outspent Gustafson’s side $1 million to $325,000. Brown himself has made his conservative views no secret, praising the U.S. Supreme Court’s ruling overturning Roe v. Wade as one of the “major decisions for liberty.” Gustafson, for her part, has argued she’s a nonpartisan figure, saying, “Our judicial system is for Montanans. It is not designed to go out and represent some sort of special interest group or special party or special activist.”
The GOP is also hoping to emerge from Election Day with two-thirds supermajorities in the legislature so that it can place constitutional amendments without any Democratic support, or even hold a constitutional convention. Unlike in most states, Republicans need two-thirds of the entire 150-person legislature in order to take these actions, not two-thirds of each chamber, though they’re already very close. They currently hold 67 of 100 districts and 31 of 50 Senate constituencies, so they need to net just two seats overall.
Some Republican candidates in key races have downplayed the possibility that they’d use this power to try to change the state constitution, which one legislator dismissed as a “socialist rag.” The head of the anti-abortion Montana Family Foundation, though, made it clear over the summer just what the stakes are in this year’s elections. “We can either amend the Montana Constitution to ban abortion or we can replace enough justices on the Montana Supreme Court to overturn the Armstrong decision,” he said.
The Downballot
● The Downballot: How should we be reading the 2022 polls, in light of shifting margins and past misses? Public Policy Polling’s Tom Jensen joins us on this week’s episode of The Downballot to explain how his firm weights polls to reflect the likely electorate; why Democratic leads in most surveys this year should be treated as smaller than they appear because undecided voters lean heavily anti-Biden; and the surprisingly potent impact abortion has had on moving the needle with voters despite our deep polarization.
Co-hosts David Nir and David Beard also dig into the third-quarter fundraising numbers for both Senate and House candidates that show Democrats crushing it; explore the GOP’s $1 million infusion into Oklahoma’s shockingly competitive race for governor; highlight two new resources from Daily Kos Elections: our candidate guide and our House Vulnerability Index; and explain why the epic Tory meltdown in the U.K. is not likely to lead to early elections.
Next week, we’re doing a mailbag episode! Send us any and all questions on the midterms and we’ll answer them. You can email us at [email protected], or you can find us on Twitter at @DKElections. A transcript of this week’s episode is right here. New episodes every Thursday morning!
Senate
● AK-Sen: CNN reports that a super PAC called Alaska First is spending $1.2 million against Republican Sen. Lisa Murkowski in an instant-runoff contest where almost all of the outside spending has benefited the incumbent so far. The group’s spot isn’t online yet, but it says it will blast Murkowski’s vote against Brett Kavanaugh as her “biggest betrayal” and also tout Kelly Tshibaka’s intra-party challenge.
● GA-Sen: Democratic Sen. Raphael Warnock is airing the first TV ad of the race focusing on reports that Republican Herschel Walker encouraged and paid for his then-girlfriend to have an abortion in 2009 to make the case that Walker is a liar who doesn’t believe a ban should apply to himself.
The spot begins with clips of Walker saying, “There’s no exception in my mind, like I said, I believe in life … There’s not a national ban on abortion right now, and I think that’s a problem.” It then shows footage of reporters talking about the allegations against Walker, including how his former partner produced “a $575 receipt from the abortion clinic,” before another journalist says, “Even his own son is saying Walker is lying.” The spot closes with footage where Walker agrees that his signature is on the check to pay for the procedure.
● Polls:
CO-Sen: Civiqs (D): Michael Bennet (D-inc): 54, Joe O’Dea (R): 41
NV-Sen: YouGov for CBS: Adam Laxalt (R): 49, Catherine Cortez Masto (D-inc): 48
PA-Sen: InsiderAdvantage (R) for WTXF-TV: John Fetterman (D): 46, Mehmet Oz (R): 46 (Sept.: 45-42 Fetterman)
WA-Sen: Civiqs (D): Patty Murray (D-inc): 55, Tiffany Smiley (R): 41
PA-Sen: This is the first poll that anyone has released since the May primary to show anything other than a lead for Fetterman.
Governors
● IL-Gov: While conservative megadonor Richard Uihlein has largely been content to fund a super PAC rather than give money directly to Republican Darren Bailey’s cash strapped campaign, Uihlein did contribute $2 million to Bailey on Tuesday. The Chicago Tribune says that Uihlein donated $1 million to the campaign in late August, which was his only prior general election contribution to the nominee; by contrast, Uihlein forked over almost $34 million to People Who Play By The Rules PAC following the primary.
● Polls:
CO-Gov: Civiqs (D): Jared Polis (D-inc): 55, Heidi Ganahl (R): 40
MA-Gov: MassINC for the Barr Foundation: Maura Healey (D): 53, Geoff Diehl (R): 23
MI-Gov: Cygnal (R): Gretchen Whitmer (D-inc): 49, Tudor Dixon (R): 44 (mid-Oct.: 49-44 Whitmer)
NV-Gov: YouGov for CBS: Steve Sisolak (D-inc): 48, Joe Lombardo (R): 48
NY-Gov: SurveyUSA for WHEC-TV and WNYT-TV: Kathy Hochul (D-inc): 47, Lee Zeldin (R): 41 (Aug.: 55-31 Hochul)
OR-Gov: Hoffman Research (R): Christine Drazan (R): 37, Tina Kotek (D): 35, Betsy Johnson (I): 17
OR-Gov: Civiqs (D): Kotek (D): 47, Drazan (R): 39, Johnson (I): 7
PA-Gov: InsiderAdvantage (R) for WTXF-TV: Josh Shapiro (D): 49, Doug Mastriano (R): 42 (Sept.: 52-37 Shapiro)
NY-Gov: While SurveyUSA back in August gave Hochul her largest lead since the primary, it’s now the third firm this week to show an unexpectedly close contest in this dark blue state: Quinnipiac University gave her an even smaller 50-46 edge, while Siena College had her ahead by a stronger 52-41 margin. Republicans haven’t won a statewide race in New York since Gov. George Pataki secured his third term in 2002, and Biden romped to a 61-38 victory here in 2020.
SurveyUSA also shows Senate Majority Leader Chuck Schumer ahead 52-38, which would make this by far Team Blue’s smallest win in a statewide federal election since Hillary Clinton prevailed 55-43 in the 2000 Senate race; Quinnipiac and Siena had Schumer up 54-42 and 57-37, respectively. Democrats are hoping that these are signs that at least SurveyUSA and Quinnipiac are finding an unusually conservative sample, though it’s certainly possible that the political climate is the real culprit.
OR-Gov: Civiqs not only gives Kotek her best numbers of the entire campaign, it’s also considerably better for her than her 40-38 edge in her recent internal. The firm is also the first to show Johnson in the single digits.
House
● AZ-02: Politico reports that the DCCC has put $680,000 behind its ad campaign defending Democratic incumbent Tom O’Halleran in this redrawn 53-45 Trump district.
● RI-02: NBC writes that the NRCC has booked at least $800,000 as it attempts to flip this open seat.
● Polls:
CO-08: Global Strategy Group (D) for Yadira Caraveo: Barb Kirkmeyer (R): 46, Yadira Caraveo (D): 44 (Aug.: 44-42 Kirkmeyer)
GA-02: InsiderAdvantage (R): Sanford Bishop (D-inc): 47, Chris West (R): 44
CO-08: We haven’t seen any polls in the time between these Caraveo internals even though this is one of the most expensive House races in the country. This newly created constituency, which is based in the northern Denver suburbs and Greeley area, would have supported Biden 51-46.
GA-02: This is the first poll we’ve seen from a reputable firm of this 55-44 Biden seat in southwestern Georgia. Major Democratic outside groups have poured $2.5 million to defend Bishop as of Thursday, but despite this poll, the better funded GOP super PACs haven’t gotten involved here yet.
Ballot Measures
● KY Ballot: The Cincinnati Enquirer reports that the campaign backing Amendment 2, a referendum that would amend Kentucky’s constitution to say that the state’s governing document does not “secure or protect a right to abortion or require the funding of abortion,” is spending $343,000 on its opening TV buy. The “no” side, which has outraised its opponents $3 million to $595,000 through Oct. 9, began airing spots weeks ago.
Yes for Life Kentucky’s commercial argues that the passage of the amendment “stops taxpayer-funded, late-term abortions,” which isn’t true. The legislature in 2017 banned abortions after 20 weeks, and Kentucky did not provide funding for abortions even before the procedure was all but outlawed this summer.
The state Supreme Court in September allowed that near-total ban to remain in force until it determines whether the law violates the state constitution. A hearing in the case is set for Nov. 15, but a win for Amendment 2 the week before would take the decision out of the justices’ hands. Should the amendment fail, however, the court could still rule in favor of the ban.
● MA Ballot: MassINC’s new poll for the nonprofit Barr Foundation finds a 59-31 majority in favor of the “millionaires tax” or “Fair Share Amendment,” which would increase taxes on personal income over $1 million in order to fund education and transportation projects. Suffolk University earlier this week found this proposed amendment, which is Question 1 on the ballot, ahead 58-37.
Attorneys General and Secretaries of State
● WA-SoS: Republican state Rep. Brad Klippert announced this week that he would run as a write-in candidate in the special election for secretary of state, where appointed Democratic incumbent Steve Hobbs is trying to fend off independent Pierce County Auditor Julie Anderson. Klippert was on the ballot in the August top-two primary in Washington’s 4th District against Rep. Dan Newhouse, a Republican who voted to impeach Donald Trump, but he took fifth with 10% after raising very little money.
This isn’t the first time that Republicans have waged a write-in campaign for statewide office after getting locked out of the general election. Joshua Freed tried this in the 2020 all-Democratic contest for lieutenant governor, but it didn’t work: Rep. Denny Heck beat state Sen. Marko Liias 46-34, while write-in votes accounted for the remaining 21%.
● Polls:
MI-AG: Cygnal (R): Dana Nessel (D-inc): 45, Matthew DePerno (R): 43 (mid-Oct.: 45-43 Nessel)
MI-SoS: Cygnal (R): Jocelyn Benson (D-inc): 48, Kristina Karamo (R): 40 (mid-Oct.: 48-42 Benson)
TX-AG: Clarity Campaign Labs (D) for DAGA: Ken Paxton (R-inc): 48, Rochelle Garza (D): 46
Ad Roundup
Dollar amounts reflect the reported size of ad buys and may be larger.
