In a nonpartisan race where Republicans are betting their statewide popularity will outdo an incumbent Supreme Court justice, political experts say financial support will still be a key component in the election.
Incumbent Justice Ingrid Gustafson and Republican Public Service Commission chair James Brown advanced from Tuesday’s primary election. Gustafson came away with 48% of the ballots cast, with 125,531 votes, to Brown’s 36%, or 94,905 votes. Lewis and Clark County District Court Judge Mike McMahon took third in the race; only the top two vote-getters move on to the general.
The race’s proximity to partisanship — particularly Republicans’ bullhorn support for Brown — has drawn comparisons to the 2014 race between Justice Mike Wheat and Montana Solicitor General Lawrence VanDyke. In that race, the Republican State Leadership Committee (RSLC) spent $477,500 in support of VanDyke throughout the election, according to the Brennan Center for Justice. This year, the Montana Republican State Central Committee already spent more than $85,000 in support of Brown in the last two months before the primary, and Federal Communications Commission records show the RSLC buying TV ads supporting Brown in the week leading into the primary.
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Gustafson is backed by Montanans for Liberty and Justice, a political action committee for the Montana Trial Lawyers Association, which also played a role in supporting Wheat in 2014. That year the group put up $640,000 in support of Wheat. So far this year the group has reported $132,000 in independent spending in support of Gustafson, according to campaign finance records.
Brown finished 12 points behind Gustafson in a primary where Republican turnout in Montana appeared to be strong. More than 27,800 Republican ballots were cast in the western congressional district than Democratic ones, while the eastern congressional district saw 59,150 more GOP ballots compared to Democratic ones.
About 16,000 votes were left on the table in the Supreme Court primary; 277,278 votes were cast for congressional candidates in Montana in Tuesday’s primary, while 261,044 people selected a Supreme Court candidate.
According to Carroll College political scientist Jeremey Johnson, even in such a partisan environment the biggest question in the race still isn’t how much voters will care that Brown holds office as a Republican and is running with GOP endorsements while Gustafson has never held a partisan office.
“I think the bigger question is how much money are the Republicans willing to spend for the election in November,” Johnson said.
Democrats have thrown financial support to Supreme Court candidates before, but have so far limited their involvement this cycle to criticizing the GOP for its organized efforts behind Brown’s candidacy. Even without the partisan horsepower, Johnson said Gustafson’s incumbency remains valuable.
“(Republicans) are pushing hard for him, but it goes against a respected incumbent justice,” Johnson said. “We’ll just see how much money they’re willing to spend on this.”
Jake Eaton, who runs the The Political Company firm and has spoken in support of Brown’s candidacy, said groups that hire him will continue spending money to “highlight the deficiencies in her record and highlighting the positives of Jim’s,” but declined to comment further on electioneering strategy.
This week, however, Eaton seized on Gustafson’s campaign bringing in less than 50% of the votes cast.
“I think coming in under 50% for an incumbent is an extreme sign of vulnerability,” Eaton said.
The primary election for Gustafson’s seat was a three-way race. McMahon garnered 16% of the vote with about 40,600 votes, without the statewide name recognition or the partisan backing, and it’s unclear to which candidates those votes may fall in November.
Gustafson’s campaign, asked to respond to Eaton’s analysis of her tally in the primary, referred the Montana State News Bureau to her comments from the Tuesday night victory in the primary.
“I am honored and thankful Montana voters have given me the opportunity to continue my work and run for re-election in the fall,” Gustafson said Tuesday. “I love the work that I do and I’m eager to continue to do it.”
Johnson was doubtful that Gustafson’s primary figures are a reliable forecast.
“First, it’s a low-turnout election,” he said. “I just don’t think it’s that meaningful compared to what we’ll see in the general election. There was a three-way primary, so there’s more splitting of the votes.”
While Gustafson and Brown regroup after the primary, Supreme Court Justice Jim Rice and challenger Bill D’Alton, a personal injury attorney from Billings, are likely gearing up for the first time. Rice got 76% of the vote on Tuesday. He had raised more than $43,000 and only spent $11,373 through May 17, according to campaign finance records. D’Alton, who gathered 24% of the vote on Tuesday, has not raised a dime. Both were guaranteed to advance from the primary.