HELENA — Ten months after the 2021 Montana Legislature ended, a dozen lawsuits are still alive, challenging parts of 16 different laws passed by the session’s GOP majority – on subjects ranging from abortion to voting to energy policy.
One of the attorneys pressing several of these cases says it’s a matter of reining in a Republican majority that had no political restraints in 2021 and ended up trampling on Montanans’ constitutional rights.
“I see these lawsuits, in part, as a line-drawing exercise to say, there are boundaries imposed on the Legislature by the constitution, by the people,” says Raph Graybill, a Democrat who lost the 2020 election for attorney general to Republican Austin Knudsen. “The constitution really protects us from the government. And these overreaches that are being challenged in court are government overreaches.”
Knudsen, as attorney general, is charged with defending these laws in court.
So far, his office has won the only 2021 law challenge that has been decided by the Montana Supreme Court, preserving the law that gave Republican Gov. Greg Gianforte more power to appoint state judges.
No other case challenging 2021 laws has been completed by the Supreme Court – although key lower-court rulings have gone against the state in cases involving abortion restrictions, restrictions on political activity on college campuses and allowing guns on state campuses.
Kyler Nerison, a spokesman for Knudsen, told MTN News that most of the lawsuits are an attempt by Democrats and their allies to undo their political losses at the polls in 2020 and during the 2021 Legislature.
“I think Montanans roundly rejected the Democrat agenda in November, and (Democrats) didn’t have the votes in the Legislature to stop these bills, and so they’re running to the courts to try to stop them there,” he says.
Graybill, however, says just because Republicans won big majorities and the governor’s office for the first time in 20 years doesn’t mean they get to do whatever they want.
He maintains that while Montana voters put Republicans in power, they didn’t necessarily vote for the passage of laws that violate Montanans’ right to privacy, to vote, or engage in political activity on public, college campuses.
“I think a lot of Montanans were surprised to find when they voted in Republicans to statewide office, they got an extraordinarily conservative, right-wing religious movement running the state,” he says. “I don’t think that’s what people voted for in 2020 and I think that anyone who continues to believe that is in for a real awakening in 2022 and thereafter.”
Nerison says the GOP doesn’t fear the verdict of the voters.
“In terms of people voting on specific bills (that were passed) or not, they’ll have another opportunity to make their voice heard in November,” he says.
Graybill, now in private practice in Helena, is representing clients in a half-dozen lawsuits related to legislative actions in 2021. A number of other attorneys, often with Democratic ties, are assisting on the other cases, as well as out-of-state counsel associated with some of the groups filing suit.
Attorneys in Knudsen office are handling a heavy workload of defending the cases, which have had scores of often-lengthy court filings since last spring.
They, too, sometimes have assistance from counsel outside the state, such as the Alliance Defending Freedom, an Arizona-based group helping defend the new laws restricting abortion in Montana.
Here’s a summary of the status of the major cases still in play:
Abortion: Planned Parenthood of Montana is challenging four laws that restrict abortion in Montana. A state district judge in Billings has blocked the laws from taking effect, while he determines their constitutionality – and his order indicated he will find them unconstitutional. The state has appealed his order to the Montana Supreme Court.
Voting: Several laws that restrict voting, such as the elimination of Election Day voter-registration, are being challenged by the Montana Democratic Party, Native American groups, youth-voting groups, organized labor and a group representing disabled people. In three of the cases, the parties are awaiting a ruling from a state district judge in Billings on whether the laws will be blocked from taking effect, while their constitutionality is decided. Another case in state court in Great Falls hasn’t had any major filings.
Vaccines: Two lawsuits – one in federal court, one in state court – are challenging the law that forbids employers from requiring employees to be vaccinated. In the state court case, filed by a Sidney law firm, a judge in Glendive declined to block the law from taking effect and indicated she may uphold it. In the federal case, filed by health-care businesses and groups, a judge has denied the state’s motion to dismiss it, and the case continues.
University system/college campuses: A trio of lawsuits are challenging laws that direct what can – and cannot – occur on state college campuses, such as a law forbidding the Board of Regents from banning firearms on campus and one forbidding certain political activity on state college campuses. A state judge has said the firearm law is unconstitutional; the state has appealed his ruling to the Montana Supreme Court. Another state judge also threw out the ban on political activity; that ruling may be appealed.
Transgender issues: A suit is challenging a law that says transgender persons must get surgery before updating their gender on their birth certificate. Parties are awaiting a decision on whether the law will be blocked while its constitutionality is decided. One of the university-system cases also involves a challenge to a law that restricts transgender athletes.
Colstrip: Two laws that could make it harder for out-of-state owners of the Colstrip coal-fired power plants to abandon the plant are being challenged in federal court as an unconstitutional restriction on commerce. A federal judge has blocked the laws while she decides the larger case.