The resignation of Republican State Senator Terry Gauthier (SD-40, Helena) revealed systemic issues in the replacement process that should be addressed by the State Legislature and Montana GOP.

At the end of November, I was officially notified that one of Montana’s state senators submitted his resignation halfway through his four-year term. The process to replace a senator due to resignation is easy in Montana, until you get people involved or run into unclear rules and laws. Those are the two areas where I learned the most while I worked meticulously to complete the necessary steps spelled out in Montana Code Annotated (MCA) 5-2-402 / 403, both county central committee published bylaws, and the State GOP bylaws.

My role in the process was as the Chairman for the Lewis and Clark County Republican Central Committee, and then as the Chairman for the combined subcommittee representing Lewis and Clark and Powell Counties. The reason for the combined subcommittee was because Senate District 40 sits geographically in both counties. The simplified process is as follows:

1. The Secretary of State notifies the Montana State Republican Party and the county commissions of the affected counties. The Secretary of State has seven days from the receipt of the official resignation letter to make this notification.
2. The county central committees affected are notified by the State GOP, and a joint subcommittee chair is assigned by the State GOP Chair. The subcommittee Chair is a non-voting member.
3. Each county central committee meets separately to select three members from their committee to represent their county at the joint subcommittee.
4. The combined joint subcommittee of six voting members meets to select up to three candidates to fill the vacated seat. The candidates voted on by the joint subcommittee are sent to the county commissions of both counties affected. The candidates are required by law to live in the district because it overlaps two county boundaries. When this step is completed the role of the Republican central committees is complete, assuming the county commissions select one of the original candidate names forwarded. This part of the process allows for forty-five days from the time of receipt of the letter from the Montana Secretary of State to the selection of candidates to forward to the commissions.
5. The county commissions form a joint commission of both counties to select from the three candidates and forward the winning name to the Secretary of State’s office. At this point the replacement Senator is seated in the legislature. The joint commission has fifteen days to complete their process and notify the Secretary of State. However, the joint commission can reject all three candidates and require that the joint subcommittee repeat their process to send new candidate names forward. At this point step four is repeated by the Republican joint subcommittee and then step five is repeated by the joint commission.

This process is not complicated , but it does take time to complete; up to sixty-seven days total are allowed.

The challenge is in the human dynamic. I managed phone calls from across Montana as legislators and citizens weighed in on the process and who they preferred. I also had to conduct outreach to the Powell County Republican Central Committee and make sure we had a mutual understanding of the law, and the State GOP rules. There were many other connections to make, such as to the State GOP Chairman, Vice-Chairwoman, the media, and other interested parties. These parties included the candidates, and my own county central committee while ensuring I did not take any actions to influence the vote of subcommittee members. It also became clear few understood the process as many called to see how the process would work – some from within the State GOP leadership.

There are a few key lessons learned, or some systemic issues of concern that should be addressed by the Montana State Legislature or State GOP.

State Legislature

The Montana Code defines the minimum requirements to get to a final selected candidate to fill the identified vacancy. However, the last step of going through a county commission could pose a problem in some circumstances. In Helena, the County Commissioner is a “non-partisan” position even though the party affiliation of the members is known. To have a Republican elected official selected by a “non-partisan” commission does not make sense. If the commission were two Democrats and one Republican, then a Republican elected position could be filled by two Democrats able to hide behind the “non-partisan” title. The risk of this happening increases when one understands that the votes of each commissioner on the joint commission are weighted based on previous district voting results for the seat to be filled. This means that two votes cast by each of two Lewis and Clark County Commissioners outweigh the votes of the remaining four members of the joint commission. The legislature must remove the county commissions from the process and let party officials replace their own. The Democrats should be equally concerned about this problem.

State Republican Party

The breakdown of the subcommittee into six voting members and one non-voting chair means, even with weighted votes, that ties are possible and there is no defined process to break ties. The State GOP bylaws need amended to account for this possibility. This could include allowing the Chair to act as a tiebreaker or appointing a Vice-Chair with the sole purpose of serving as a tiebreaker if necessary.

Despite some challenges, and easy fixes that need addressed, the process worked well enough and the people in State Senate District 40 will be well represented. I would also like to express my best wishes to former Senator Terry Gauthier.