Shady Shenanigans: Montana’s Shameless Jungle Primary Scheme

Janie Osborne/The New York Times

In the lead-up to last year’s elections, many political strategists and pundits predicted Republican wins across the country, based on the trend in U.S. politics wherein the president’s party performs poorly in midterm elections. The GOP sought to fragment the existing trifecta consisting of a Democratic House, Senate, and White House in an effort to stall President Biden’s legislative agenda—and to an extent, they were successful. Republicans gained control of the House after four years of Democratic control.

Nevertheless, Democrats outperformed electoral expectations nationwide, thwarting a “red wave” of GOP victories and expanding their control of the U.S. Senate to a slim 51-49 seat margin. Looking ahead to 2024, Senate Democrats face an uphill battle: of the 34 seats up for reelection, they are defending 23. Of these, several are held by vulnerable incumbent Democrats in traditionally red states—West Virginia (Joe Manchin) and Ohio (Sherrod Brown)—but one state that often gets overlooked is Montana, where Sen. Jon Tester (D-MT) has announced his reelection bid. Making matters awkward, Montana’s other senator, Steve Daines (R-MT), serves as the chair of the National Republican Senatorial Committee (NRSC). The committee’s goal to elect more Republicans to the upper chamber makes Tester, a moderate Democrat, a primary target for Republicans in their struggle to win back the Senate. As one might expect, the relationship between the two “Treasure State” senators is not the warmest.

Both houses of the state legislature in Helena have adjourned sine die, but prior to the end of the legislative session GOP lawmakers pursued but failed to pass a bill that would have—at least in theory—jeopardized Tester’s chances of winning a fourth term. Montana’s U.S. Senate elections currently use a party primary system wherein the top vote-getter in each party (including third parties) advances to the general election. When more than two candidates compete in the general election, it is possible—as past electoral history shows—for the winner to receive less than a majority of votes cast. Republican state Sen. Greg Hertz’s SB 566 would have adopted a top-two “jungle primary” system—whose merits are debatable and a topic for another time—in which only the top two vote-getters, regardless of party, face off one-on-one against each other in the November election, all but ensuring a majority-vote winner. Assuming one Democrat and one Republican come out on top, the expectation was that would-be Libertarian Party voters would vote for the latter (with whom their values may more closely align), pushing the Republican candidate over the majority vote threshold.

To be clear, this concerted effort to change election laws in the final weeks of the legislative session, while underhanded, was lawful and legitimate. GOP lawmakers in Montana had every right to change the election rules in their state, according to Article IV, section 3 of their state constitution, but one major caveat baked into the language of the bill made it clear that these legislators were playing dirty politics beyond their obvious attempt to siphon the votes of libertarians.

The one glaring provision in this bill is that it would have sunset in 2025. That is, the change in election rules would have applied only to the 2024 U.S. Senate election. Republicans claimed that 2024 would serve as a “‘test run’” of the top-two primary system after which lawmakers would “evaluate its impact and decide whether to continue or expand” it. There are two major flaws to this narrative. If one truly wants to “test” the jungle primary system, why not alter the rules for a less-consequential race? U.S. senators serve six-year terms, and given the alternative of applying the jungle primary to House races, any “undesirable” consequences resulting from this test run would have ramifications for six years versus only two if Montana’s House races adopted jungle primaries. The scope of races (or rather, race) for which this bill applies raises questions about the intentions of these lawmakers. Furthermore, since a jungle primary system guarantees a majority-vote winner by design, Hertz’s “solution” would have merely created an illusion that winners under this system were the first choice of the majority of voters. It is very possible that the candidate who receives the majority of votes in the general election under a jungle primary system would not have received a majority of votes under a different system. It certainly appears as though Montana Republicans want to ensure the 2024 victor is a Republican at all costs, even at the expense of a winner who may better represent voters.

This “wait-and-see” approach is indicative of two things. First, the expansion of the top-two primary system would have been contingent on who wins the 2024 Senate election. Specifically, I theorize that GOP lawmakers would have chosen to expand the jungle primary to other races and to future U.S. Senate races if the Republican nominee emerged victorious, and they would not do so if the Democratic nominee won. Second, Republicans are simultaneously confident and unsure of their chances of flipping the seat under the proposed jungle primary system. They are confident enough to risk giving Tester another six-year term but not enough to implement the jungle primary indefinitely. Indeed, it would be a bad look for Republicans if they were to backtrack on the jungle primary. Suppose they had not included the sunset provision, and Tester wins reelection under the new rules. If Republicans in the state legislature were to repeal the law then, it would be too obvious that Tester’s win was the motivation for the about-face.

In response to the bill, Democrats cried foul and accused their Republican counterparts of being complicit in a “‘partisan power grab’” that installs “‘one party rule’” and takes away “‘fair elections’” in Montana. They contend that the change in election rules would have effectively barred third party candidates from the general election ballot, since third party candidates have virtually no chance of coming in first or second in primary elections. A number of Republicans also expressed concerns regarding backlash from Libertarians, fearing they will voice their frustration by voting for Democrats, punishing the GOP for silencing the voices that best represent their views.

Proponents of the bill argue that given the six-year terms of U.S. senators, they should be elected by a majority of the voters in the state. Looking at historical election results, however, the last time a U.S. Senate race was won by less than a majority was in 2012. In the three Senate elections since, the winning candidate has won with the support of a majority of voters. It is curious, then, why these lawmakers are pushing this change now as opposed to any time in the last ten years when concerns about a winning candidate with less than a majority vote would have been more relevant.

The “red wave” that failed to materialize in last year’s midterms have left national Republicans scrambling to find ways to take back the Senate next year, and the ideas in SB 566 overcompensated for their dismal performance by proposing to get rid of party primaries in Montana’s elections for U.S. Senate in a brazen and almost comedic effort to prevent Tester’s reelection. Enough Republicans eventually joined with Democrats to kill the bill—evidence that some semblance of conscience still exists within the GOP—but the attempt to overhaul how Montana elects its U.S. senators was just one instance in a series of questionable and downright harmful policies Republican-led legislatures have advanced throughout the country. From interfering with local control over elections to blurring the separation between church and state to censoring LGBTQ+ curriculum in schools, some lawmakers nationwide remain unabashed in their attempts to upend American democracy and American values.