Dems challenge ballot collection law in court

HB530 challenged the day Gianforte signed it; may be added to other suit

By: - May 17, 2021 7:51 pm

Sen. Mike Cuffe, Gov. Greg Gianforte and Secretary of State Christi Jacobsen during a bill signing ceremony that changes identification requirements for voting in Montana (Photo courtesy of the Office of the Governor).

Nearly as soon as Montana Gov. Greg Gianforte signed House Bill 530 into law, Montana Democrats added it to a lawsuit challenging several different bills the 2021 Legislature passed changing voting rights.

Previously, the Montana Democrat Party had challenged two bills in Yellowstone County less than 24 hours after Gianforte signed them. House Bill 176 eliminated same-day or “Election Day Registration,” and House Bill 169 changed accepted identification for voting registration, tightening the list of approved ID.

On Friday, the Democrats amended the lawsuit and added House Bill 530, which also restricted ballot collection, imposing fines for any group or individual not a mail carrier or family member who takes ballots to be mailed or to a collection site.

A separate legal case involving voting rights and Native Americans was filed by the American Civil Liberties Union and a coalition of tribes and organizations, including Western Native Voice, which had previously challenged and successfully got an earlier version of ballot collection law struck down as unconstitutional in 2020.

The updated lawsuit asked the court to strike down the latest law, calling it unconstitutional on both the state and federal level, and saying it disproportionately disenfranchises disabled, elderly and Native residents.

The suit notes that in 2020, two Montana district courts held that the “Montana Ballot Interference Prevention Act” violated the Montana Constitution. The updated lawsuit argues that HB530 made minor changes, but essentially was the same law in substance as the ballot interference act, commonly referred to as “BIPA.”

“Among other things, those courts held that BIPA unconstitutionally burdened the right to vote and unconstitutionally infringed on speech and association rights,” the suit said.

The lawsuit presents a legislative timeline for 2021 lawmakers who made several attempts at resuscitating BIPA. Rep. Mark Noland, R-Bigfork, had originally introduced House Bill 406, which he said walked back some of the concerns that were struck down by the court, namely that a household member or caregiver could collect ballots. Even then, the Senate struck down HB406 narrowly by a 27-23 vote.

However, the language was resurrected in HB530, a bill that had originally been used to implement new election rules “and nothing else.” In fact, the original version of HB530 was so noncontroversial that the Montana House of Representatives passed it unanimously.

The lawsuit chronicles the bill’s sudden change when Sen. Steve Fitzpatrick, R-Great Falls, amended HB530, inserting the BIPA language on the Senate floor, not during the committee hearing.

“The deadline for transmitting amendments to pending bills from one chamber to the other was April 20,” the suit said. “Sen. Fitzpatrick admitted that his amendment had ‘come late.’”

Because the amendment violated the rules, the House had to vote to suspend rules in order to keep the bill alive, and the measure passed, largely along party lines.

Lawyers for the Democrats argue that the newly signed HB530 goes even farther than the originally struck down BIPA because it also forbids any person who helps a voter “request or receive” a ballot.

“Meanwhile, organizations and individuals are left to guess about the scope of the prohibition and whether it will prevent someone like an aid or nurse, who is paid to assist elderly or disabled voters from helping their patients request, receive or complete their absentee ballots,” the suit said. “American Indian voters in particular rely on organized absentee ballot assistance. Many American Indian voters live in remote areas with limited access to transportation, often located far from county election offices. Mailing absentee ballots can be difficult for American Indian voters because they often have limited access to postal services, and mail sent from tribal nations may face a longer transit time to and from postal service processing centers than mail sent from elsewhere in the state.

“In order to help overcome these obstacles, American Indian voters have relied upon organized ballot return assistance programs provided by civic and political organizations. Similarly, many senior and disable voters rely on organized ballot assistance.”

The suit contends that not only are voting rights at stake with the new law, that lawmakers have also violated the First Amendment.

“Collecting and conveying ballots for voters involves that very type of interactive communication and civic engagement that the Montana Constitution protects as core political speech,” the suit claimed.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.