Election security bill heads to Gov. Gianforte’s desk

Opponents say it will be found unconstitutional, like BIPA

By: - April 27, 2021 7:24 pm

Stacks of boxes holding cards and letters are seen at the U.S. Post Office sort center December 15, 2008 in San Francisco, California. On its busiest day of the year, the U.S. Postal Service is expecting to process and mail over one billion cards, letters and packages. (Photo by Justin Sullivan/Getty Images)

Rep. Wendy McKamey, R-Ulm, said people shouldn’t give their ballot to someone who is paid to take it to the elections office, and most representatives agreed with her Tuesday, sending House Bill 530 to Gov. Greg Gianforte’s desk.

We want to keep it as clear and transparent and unimpeded and uninfluenced by monies as possible,” McKamey said on the House floor.

But Rep. Tyson Running Wolf, D-Browning, said an amendment to the election security bill means many people living in rural and Indigenous communities won’t be able to vote. As adopted, the bill states that a person can’t provide or accept a pecuniary benefit in exchange for requesting or collecting a ballot.

“This bill effectively ends the legal practice of ballot collection, and it disenfranchises Native American voters en masse in the state of Montana,” Running Wolf said.

Rep. Denise Hayman, D-Bozeman, described the amendment to the bill as “a backdoor version of the Ballot Interference Prevention Act, BIPA,” a law that was litigated and found to be unconstitutional.

“This bill is certain to be challenged immediately, adding yet another costly lawsuit to the growing list of voting rights litigation,” Hayman said.

A similar bill this session, House Bill 406, was indefinitely postponed in the Senate. Many opponents had spoken against the bill, also citing the court ruling against BIPA.

In September, a Montana court ruled in favor of Western Native Voice in its case against Corey Stapleton, then-Montana Secretary of State, over the Ballot Interference Protection Act. The court found the restrictions the law imposed on ballot collection efforts violated the plaintiffs’ constitutional right to vote.

“Aside from the bill sponsor’s assertion at the hearing, nothing in the legislative record supports a finding that Montana has or ever had a problem with unsolicited ballot collection or that ballot interference represents a compelling government interest in Montana,” wrote Yellowstone County District Court Judge Jessica Fehr in the order. “The State admits there is not a single example of voter fraud in Montana caused by ballot collection.”

(Even if there was a demonstrated problem, the judge said the law was not narrowly tailored enough.)

But the court ruling also noted the additional barriers Native American voters can face: “CSKT (Confederated Salish and Kootenai Tribes) members are more likely to live in the foothills and more rural parts of the reservation. This makes the travel times to amenities such as the post office more burdensome for many Natives than for non-Natives that live closer to amenities.”

In his remarks, Running Wolf described some of the problems voters in rural areas face, which many other members of the public have also presented in testimony. He said in a state where a majority of people vote by mail, rural and tribal communities work with get-out-the-vote organizations to get ballots to election offices, which would otherwise be inaccessible because of distance, lack of access to transportation, or other socio-economic barriers.

“Ballot collection is a lifeline to democracy for our Native voters that pay taxes,” Running Wolf said. “Ballot collection is a lifeline to democracy for rural and Indigenous communities. This bill would make it impossible for organizations to engage in that work.”

McKamey, though, said while she hadn’t asked for the amendment, she believed it strengthened the purpose of keeping elections safe, starting with the protection of a ballot. She said people could still help their family members collect ballots and deliver them, but some things would need to be different.

“There are going to be habits that are going to have to change because we need to keep our security at the utmost, and this is the first line of security is the security of our ballot,” McKamey said.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.