Court hears voting rights challenge case, may consolidate two similar lawsuits

Attorneys debate whether changes made by Legislature were modest or more substantial

By: - October 29, 2021 2:08 pm

Attorney Matthew Gordon addresses the court on behalf of the Montana Democrat Party on Oct. 29, 2021 in the Yellowstone County Courthouse before Judge Michael Moses (Photo by Darrell Ehrlick for the Daily Montanan).

A Yellowstone County District Judge heard oral arguments in a lawsuit challenging the Legislature’s changes to voting laws from the Montana Democratic Party and Western Native Voice, a group lobbying and representing American Indians in Montana.

The Friday morning hearing focused on what standards the court would use to scrutinize the new laws, which change Election Day voting and identification requirements. Judge Michael Moses also heard arguments from attorneys representing Montana Secretary of State Christi Jacobsen, who said many of the Democrats’ arguments should be dismissed because the political party lacks standing and has only presented theoretical harm that could happen, not evidence that the laws, passed earlier this year, have harmed anyone.

The judge made only one ruling from the bench on Friday: That Jacobsen’s office could not delay or stop the legal discovery process from the Democrats while the other motions were pending.

Attorneys for the Montana Democratic Party and Western Native Voice also told the court that regardless of the outcome, they planned to file a motion for injunction that would stop the new laws from taking effect until the outcome of the case was determined, which could affect the 2022 election in Montana.

’A modest change’

Attorney Dale Schowengerdt, who was the state’s Solicitor General during the tenure of former Attorney General Tim Fox, is representing the state and Jacobsen. He argued that the changes made by lawmakers earlier this year were “modest,” and shouldn’t be subject to heightened judicial review.

Lawmakers changed Election Day voter registration, moving it up to the day before election. The legislators also changed voter identification laws to register to require two different forms of ID, and eliminated college IDs as part of the accepted proof.

Schowengerdt pointed out that for nearly 40 years after the passage of the state’s 1972 Constitution, there was no same-day registration and that states have the right to address security measures of the election before fraud or instances of problems.

Attorney Dale Schowengerdt addresses the court on Oct. 29, 2021 in the Yellowstone County Courthouse. Schowengerdt, former Solicitor General of Montana, is representing Secretary of State Christi Jacobsen. (Photo by Darrell Ehrlick of the Daily Montanan).

The legal question centers on whether changes to voting laws require the court to apply “strict scrutiny” to the newly passed laws, or whether it must apply a lower review standard because the procedures only make superficial changes to voting, not fundamental changes.

Matthew Gordon, an attorney for the Democrats, argued the Secretary of State was “straying from the well worn path of legal precedents” to argue these changes weren’t more substantial.

In their court filings, the Democrats argue that changing the law by eliminating Election Day voting changes Montana’s franchise, or right to vote, significantly. They also argued that changing and adding more voter identification was harmful, while the state countered that it had the responsibility to ensure fair elections by enacting better security.

However, Moses asked Schowengerdt if requiring a second piece of identification wasn’t an entirely new layer, and resulted in a more substantial change than the Secretary of State’s Office suggested.

“What (Jacobsen’s) attorneys would like to do is immunize all legislative acts from review of the courts,” Gordon said. “There’s no indication that there’s been any problems with any of our elections.”

Schowengerdt argued that because there wasn’t any voter fraud – and hasn’t been in more than 25 years – that it shouldn’t hamstring the state from making elections more safe, and thereby boosting the confidence of the voters.

“There was a public perception that there was fraud,” Schowengerdt. “These laws are prophylactic. They make residents feel more confident in the election.”

’Ground to a halt’

Though the challenge was brought almost as soon as the laws were passed, Gordon told the court the case has “ground nearly to a halt.”

Attorneys for Jacobsen said that with the broad discovery requests by both the Montana Democratic Party and Western Native Voice, the Secretary of State’s Office has been using four lawyers and paying staff overtime to comply.

Schowengerdt had asked the court to stop discovery until it made a decision on whether to dismiss part of the Democrats’ lawsuit, but Moses denied that, saying that since the June primary elections were moving closer, he wanted to keep the case moving, and ordered discovery within 30 days.

“This case is critically important, and I like the idea of moving forward which requires moving forward with discovery in a timely manner,” Moses said.

Consolidated case

The hearing on Friday was essentially two hearings in one. Both Western Native Voice and the Montana Democrats have asked the court to consolidate the case because the same law is being challenged and both plaintiffs’ groups are making similar arguments.

All parties agreed that if the Montana Democrats’ case continues without dismissal that the two plaintiffs’ cases should be consolidated. However, that issue will not be decided until Moses rules on the motions and case of the Democrats. Moses told the court that he expects those rulings will happen quickly – within a week.

Yellowstone County Court history

Casting a shadow over this lawsuit is another similar lawsuit that Yellowstone County District Judge Jessica Fehr struck down in September 2020. That case, brought by Western Native Voice, found that the Ballot Interference Prevention Act of 2018 infringed on the fundamental right to vote and violates due process.

A separate but parallel case in September 2020 also saw Judge Donald Harris strike down the ballot collection rules as unconstitutional, as well as ordered any ballots postmarked on or before Election Day to be counted in the 2020 Election.

Neither case was appealed or decided by the state’s Supreme Court, so the rulings have precedent in the Thirteenth Judicial District, which covers Yellowstone County, the state’s most populous.

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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.