Western Native Voice will fight bill that limits ballot collection

Law professor notes BIPA allegations, evidence remain relevant

By: - April 28, 2021 7:57 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)

Organizers for Western Native Voice are paid to collect ballots, but that’s just one part of their job, said Keaton Sunchild, political director for the nonpartisan voting and civic engagement nonprofit based in Billings.

But this week, those organizers have been handing out coronavirus survival kits, which include items such as masks, he said. They earlier completed health care appreciation drives.

“It’s just one small part of their job,” Sunchild said of ballot collection. “While there’s people who might say it’s the most important part of their job, and maybe it is, we can’t simply not pay them for the 30 days they’re collecting ballots.”

On April 14, the Montana Senate indefinitely postponed House Bill 406, which would have limited the people who collect ballots of others to a family member, election worker or U.S. Postal Service worker.

This week, which appears to be the last of the 2021 Montana Legislature, lawmakers added an amendment to House Bill 530 that also creates limitations on ballot collection. Tuesday, the House took a final vote on the measure and sent it to the desk of Gov. Greg Gianforte.

Sen. Steve Fitzpatrick, R-Great Falls, pitched the amendment to the bill originally aimed at bolstering election security, and Rep. Wendy McKamey, R-Ulm, said she hadn’t asked for it, but she believed the addition safeguarded the ballot and, therefore, elections.

“For the purposes of enhancing election security, a person may not provide or offer to provide, and a person may not accept, a pecuniary benefit in exchange for distributing, ordering, requesting, collecting or delivering ballots,” reads the amendment that’s now part of the bill; it exempts election workers and postal workers. The bill also sets a $100 penalty for each ballot that’s improperly ordered, collected or delivered.

When House Bill 406 was heard, numerous opponents testified that it resembled the Ballot Interference and Protection Act, BIPA, a law Western Native Voice successfully challenged in court and was later struck down.

“In our opinion, (HB530) is virtually the same thing,” Sunchild said Wednesday. “ … If it goes through the way it’s written now, we are planning on finding some sort of legal path.”

BIPA, Senate Bill 352 from 2017, which created a referendum approved by voters in 2018, prohibited anyone from collecting a ballot unless the person was a family member, acquaintance, caregiver, household member, postal worker or election staff. It levied a $500 fine for every ballot unlawfully collected.

In September 2020, Yellowstone County District Judge Jessica Fehr ruled BIPA was unconstitutional and violated the plaintiffs’ rights to vote and free speech.

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Monte Mills, faculty of the University of Montana Alexander Blewett III School of Law, said the lawsuit centered on BIPA focused on the challenges of access for people on reservations and in tribal communities, and the entire statute was thrown out because it violated the constitution. 

“If this is a new bill, they’re likely going to have to file a new challenge,” said Mills, associate professor and director of the Margery Hunter Brown Indian Law Clinic.

Last year, the plaintiffs asked the court to postpone the implementation of the law given the upcoming election, and the court granted the request, Mills said. The same thing could take place should Western Native Voice or another group seek court action this time.

“It’s a little bit different timing because it’s not an election year, but that could still happen,” Mills said.

Opponents of restrictions to ballot collection pointed to the court ruling that found BIPA unconstitutional, but Rep. Mark Noland, R-Bigfork and sponsor of HB406, argued in a legislative committee that lawmakers shouldn’t be intimidated by an order from a judge.

“If a court makes a bad ruling, does that stop us from making a good law just because they did something wrong?” Noland asked earlier in the session.

Mills said it is indeed the purview of the legislature to set policy as it sees fit. Although a battle is underway among the branches of government following a bill that aims to change the way judicial appointments are made, he said the judiciary doesn’t get to tell the legislature not to pass a law similar to one the court already ruled against.

“It may not change the way a judge interprets whether that new law is constitutional if it’s substantially similar to the old law,” Mills said.

At the trial of Western Native Voice vs. Corey Stapleton, Secretary of State, a significant amount of evidence was presented around the impacts of BIPA and also the related policy concerns, Mills said. He said much of the allegations and evidence will still be relevant.

“It’s possible there’s additional evidence or reasons that have been developed since then,” Mills said. “But my guess is it’s really going to be worth folks thinking about what evidence was presented and developed (in the earlier case).”

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In her introduction to the order, Judge Fehr noted the questions in the case relate to the fundamental rights set by the pioneers who convened Montana’s Constitutional Convention and delivered a document that protected all Montanans, “irrespective of race, color or creed.”

“The questions presented cannot be viewed through the lens of our own upbringings or own life experiences, but through the lens of the cold, hard data that was presented at trial about the clear limitations Native American communities in Montana face, and how the costs associated with the Ballot Interference and Protection Act (BIPA) are simply too high and too burdensome to remain the law of the State of Montana,” the judge wrote.

Plaintiffs also included Montana Native Vote, Assiniboine and Sioux Tribes of Fort Peck, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Crow Tribe, and Fort Belknap Indian Community. Defendants also included Attorney General Tim Fox and Commissioner of Political Practices Jeff Mangan.

Most Montana voters who cast ballots used absentee voting, as high as 78 percent in the 2018 primary, the order said. But reservations are home to thousands of Montana voters “who lack equal access to the ballot and who experience greater barriers to casting mail ballots … than do other Montanans,” the judge said.

Some examples of the facts the order cited include that many Native Americans living on rural reservations lack home mail delivery; some tribal members on the Flathead Reservation don’t feel comfortable voting in-person at polling places staffed by non-tribal members because of racism; and on the Fort Belknap Reservation, it’s common for people with cars and gas money to collect mail for others and take it to the post office.

At the same time, the order noted the work of Western Native Voice and Montana Native Vote to get out the vote: “Ballot collection is a critical part of Organizational Plaintiffs’ work, as they spend a significant portion of their time on ballot collection.”

The order said the plaintiffs work on all seven reservations, have increased turnout, and in 2018, 80 percent of the voters they contacted voted; that year, the organizers collected and conveyed at least 853 ballots. Those 853 represented 9-to-10 percent of total absentee ballots cast in precincts targeted by the plaintiffs, the order said.

“The Secretary of State’s Office said there is no evidence in Montana of collectors not returning ballots or of a collector interfering with a voter or with a ballot,” the order said. It also cited just one case of confirmed voter fraud in Montana documented by the Heritage Foundation, a conservative think tank, when a man in 2011 voted his ex-wife’s ballot.

“There is no evidence of the integrity of elections being at risk in Montana,” the order said.

The order also discusses the state’s authority: “The legislature’s authority to regulate voting is designed to ensure free and fair elections, not limit them.”

The $500 fine could be prohibitive for families living at the poverty line, the order said.

In finding that BIPA infringed on the fundamental right to vote, the judge named those who help gather ballots, including paid workers: “Without ballot collection efforts, especially by Organizational Plaintiffs’ paid ballot collectors, extended family members, and community members, many Native Americans will be unable to cast their vote.”

The judge also found that BIPA violated the plaintiffs’ right to free speech because collecting ballots is an integral part of their message that the Native vote should be encouraged, and voting is an important way to engage civically.

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Sunchild, with Western Native Voice, said he believes the main point getting lost in the discussion is that problems with elections have not been substantiated, yet the laws being proposed on those claims hurt rural Montanans and Native Americans.

“People that are bringing these laws forward claim that there is some sort of irregularity with the very elections that won them their seats in the Montana government,” Sunchild said.

Once the bill is enrolled at the Secretary of State’s Office, the governor has 10 days to sign it or veto it, he said, although the bill becomes law without a signature.

This story has been updated to note BIPA was approved by voters in 2018.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”

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