Judge hears groups’ arguments to issue preliminary injunction against four voting rights laws

By: - March 10, 2022 5:47 pm

Attorneys for Secretary of State Christi Jacobsen in court before Yellowstone County District Judge Michael G. Moses on March 10, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).

Lawyers representing a number of groups met in Yellowstone County District Court on Thursday to present arguments about whether a judge should issue a temporary injunction against four different bills passed by the Montana Legislature that change the state’s voting laws.

Those laws, which concern Election Day voter registration, ballot collection, registering 18-year-olds during the election cycle, and voter identification were all changed by the 2021 Legislature. Opponents of the measures, which include the American Civil Liberties Union, the Montana Democratic Party and Forward Montana, say all the bills have one common element – to make voting more difficult and disenfranchise young voters, Native Americans and those who are disabled.

Attorneys for Secretary of State Christi Jacobsen, who is in charge of statewide elections, argued that the new laws didn’t make it harder for voters, just changed some of the voting procedures in order to protect the integrity of elections and help staff process ballots and voter registration better. They also said the state’s constitution specifically gives the Legislature the power and responsibility for regulating elections, and that’s exactly what each of the bills do.

The hearing and any injunctions may be particularly timely because of the approaching 2022 election cycle.

“Today, we’re not talking about some ill-advised voting restriction,” said Alex Rate, the legal director for the ACLU-Montana. “We’re talking about heat-seeking missiles that target vulnerable voters. And the crisis of confidence that the Secretary of State points to is self-made.”

House Bill 530: Ballot collection

One of the bills challenged is House Bill 530, which would restrict ballots from being collected by someone paid. The groups argue that this law especially disenfranchises Native American voters who often lack access to reliable transportation and postal service in order to vote.

Attorneys also argue that HB530 is not much different than the Ballot Interference Protection Act, which was passed by lawmakers in 2019 and later struck down by two Yellowstone County judges.

Rate claimed that there’s never been a case of where ballot collection has led to ballot fraud.

Lars Phillips, an attorney for Jacobsen, said that the court shouldn’t consider an injunction against HB530 because the Secretary of State hasn’t issued rules about ballot collection. For example, the new laws says that governments can collect ballots, and Western Native Voice, one of the plaintiffs in the lawsuit, works officially with the Blackfeet Nation. He said that rules, which haven’t been formulated, may allow for groups working with tribal government to collect the ballots without breaking the law.

“The prohibition against paid ballot collection isn’t an impact to voters, it impacts those who want to collect the ballot,” he said. “It doesn’t interfere with the franchise.”

And while Phillips appeared to concede there are no documented cases of fraud with ballot collection, he said that there are documented cases of intimidation.

“And the state should have an interest in guarding against that,” Phillips said.

House Bill 176: Election Day registration

Another bill being challenged, HB176, moves the last day of voter registration to the day before an election.

Attorneys for Jacobsen argued that the 1972 Constitutional Convention delegates debated enshrining same-day – or Election Day – registration in the document, but ultimately decided against it, specifically leaving it up to the Legislature to decide. Furthermore, attorney Dale Schowengerdt, representing Jacobsen, said that the change was necessary to give small county election staff enough time to process the election safely.

Montana has had same-day registration for more than 20 years, and Schowengerdt argued that pushing voting back a day is a reasonable balance, and that voters who register early can still vote at the same time.

But attorney Matthew Gordon pointed to statistics from Jacobsen’s office which show that roughly 7 percent of Montana’s voters register on Election Day, and that 16 times as many voters register to vote on Election Day than any other day.

And because Native Americans in the state tend to live farther away from a county voting office and have more challenges with reliable transportation, that the law disproportionately targets them and college students.

Gordon said that because college students may not have voted, may not have all the state identification and may move more frequently, same-day registration hurts college-aged students more than the average citizen.

The team of lawyers presented testimony from four different Montana residents who had been eligible to vote, but turned away because of glitches in various systems meant to communicate eligibility. For example, one man’s voter registration card hadn’t been transferred from the Department of Motor Vehicles, but his wife’s had, resulting in him being denied a ballot, but her being able to vote.

“The four examples that have been provided are unfortunate. That’s not how it’s supposed to be,” Schowengerdt said.

Gordon also said that most election offices are open Monday through Friday during normal business hours, but this may be a challenge for residents who work the same schedule.

“Those polls may be the only time when people working Monday through Friday can go and register,” Gordon said.

He said that Election Day registration has always led to higher voter turnout, proving that changing it will harm or disenfranchise some voters.

“Keeping same-day election has the salutary effect of increasing the participation in democracy,” Gordon said.

He also pushed back against the idea that the law should be in effect because more voters mean more work for election workers.

“That’s their job. That’s what they’re there to do,” Gordon said. “If those arguments that it creates more work are accepted, then anything can be accepted that would decrease voter turnout.”

Gordon argued that same-day registration was even more safe than other forms of voting because it required a voter to show up in person, with identification.

“If you start turning away voters, there will be less confidence in the system, not more,” Gordon said.

Senate Bill 169: Voter identification

Rylee Sommers-Flanagan, one of the attorneys challenging the set of laws, told the court that changing voter identification requirements simply increased the burden of young voters without making elections safer.

She said the state’s move not to accept a college- or university-issued identification cards specifically targeted young voters. While Jacobsen’s attorneys said that law’s effect was minor, Sommers-Flanagan argued that different counties had different requirements for concealed weapons permits, which are accepted over student identification, even though lawmakers had argued that inconsistent requirements for college-issued identification was a possible security concern.

Schowengerdt said the burden imposed by the state, even with the change, is very low. In fact, he said that as he checked into a Billings hotel, he was required to use a state-issued driver’s license. When he asked if a student identification would do, the clerk said they don’t accept those.

“And voting is at least as important as checking into a hotel,” he said. “The burden here is very low and (the groups challenging it) have no evidence that this law was passed to discriminate.”

House Bill 506: Registration of 18-year-olds

The final law challenged was House Bill 506, which changes the process for registering those who turn 18 before Election Day, but are 17-year-olds when ballots are distributed.

The current law, Sommers-Flanagan argues doesn’t make sense because it prohibits counties from letting 17-year-olds have a ballot even if they’ll be 18 by Election Day.

“This interference by the Legislature makes it particularly difficult for young people to vote,” Sommers-Flanagan said.

The law would still allow “pre-registration” but not voting. Those voters must come back to vote, or must turn around a ballot in a shorter timeframe in order to be counted.

Schowengerdt said the law was necessary because different counties treated soon-to-be-18-year-olds differently. Some allowed them to cast a ballot, others didn’t.

“But the law turns on whether they’ll be 18 on Election Day. That’s what matters,” Sommers-Flanagan said.

She also pointed to the state constitution, which says that minors cannot be treated differently than adults.

“Making voting more difficult and turning people away will lead to confusion. And confusion will lead to distrust in the system. These laws actually are likely to create the exact problem that the Secretary believes exists,” Sommers-Flanagan said.

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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.