Attorneys in Yellowstone County District Court debate a group of voting laws passed by the 2021 Montana Legislature on July 11, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).
Lawyers for the state and several organizations spent Monday afternoon searching for the problems that solutions created by the Montana Legislature solved.
The hearing in Yellowstone County District Court focused on four bills passed by Montana lawmakers that changed voting laws and access to ballots and those collecting ballots. District Court Judge Michael G. Moses pressed lawyers for the State of Montana and Secretary of State Christi Jacobsen about what evidence lawmakers used to craft the new, more restrictive laws that would prove the state was working to make elections more secure while also safeguarding the constitutionally protected right to vote.
Both lawyers for the state as well as lawyers for the plaintiffs representing a variety of groups including Western Native Voice and the American Civil Liberties Union, spent three-and-a-half hours arguing about why Moses should issue a summary judgment for their side as they debated whether the laws unlawfully prevented Montanans access to the ballots.
Referencing a recent Montana Supreme Court decision that focused on whether the same lawmakers had the right to control or restrict guns on public university and college campuses, Moses said the high court had given clear definition as to the distinct roles and standards each part of government, the judiciary and lawmakers, must meet.
“We all have standards that we are required to meet,” Moses said. “We don’t get to sit here and do whatever we want. If I did, I’d be legislating from the bench, and it ain’t going to happen.”
For example, attorneys for the state argued that the Republican-led Legislature had passed Senate Bill 169, which rejected university-issued identification because it was easier to forge. Moses questioned what evidence the Legislature used to establish that claim.
“You have to jump through an extra hoop that you didn’t have to two years ago. If you’re a college student, it just got harder for you. What is the standard for doing that? Where is the factual basis for that decision,” Moses asked.
But an attorney representing the state and Jacobsen, John Semmens, argued that lawmakers don’t necessarily need proof to exercise their ability to make or change laws.
“The Legislature doesn’t have to provide a detailed record about designing legislation,” Semmens argued.
The hearing also focused on what level of judicial review or scrutiny should be applied to the four laws passed by the Legislature. Attorneys for the ACLU argued that strict scrutiny must be applied because a constitutional right, suffrage, was at stake. Meanwhile attorneys for the state argued the Legislature has the right to set elections in the manner it sees fit by both the United States and the Montana constitutions.
Same Day Voting
The four laws being challenged have been the subject of debate since they were first introduced. House Bill 176 eliminated same-day, or Election Day, registration for voters, moving it to noon of the day before the election. Voting-rights organizations have argued this unduly affects Native American voters who, on average, live farther away from election offices and could wind up needing to make multiple trips to vote, instead of registering and voting on Election Day.
“Article IV, Section 3 (of the Montana Constitution) does not include voting in the most convenient way,” Semmens said.
He pointed out that in 1972, framers of the constitution had set a 40-day registration window for voters and specifically opted not to include Election Day registration as proof that it should be left up to lawmakers to decide the specific issues of registration.
Moses questioned Semmens about why the Legislature could ignore the will of the voters, who overwhelmingly approved same-day election registration.
Semmens said it comes down to trying to balance the workload of rural election officials by “making the smallest change possible.”
Alex Rate, legal director for Montana’s ACLU, told the court that Native Americans disproportionately use same-day registration when compared to other groups, and that in 2018 and 2020, more than 800 Indigenous people used it. And overall, 5 percent of voting takes place through same-day voting.
Senate Bill 169 eliminated university-issued student identification as an acceptable form of identification for voter registration.
Moses’ questioning focused on whether there was a documented problem with university issued identification.
“If there is no proof that there was ever a problem or if none existed, why did anyone do anything? Why would you burden the voters if you didn’t have a problem,” Moses asked, calling the state’s argument a double-edged sword.
Semmens argued the Legislature has the responsibility of guarding against fraud proactively.
“The plaintiffs in this case seem to reject anything that changes law, making the law a one-way ratchet that can only make it easier,” Semmens said.
Attorney Matthew Gordon argued on behalf of the plaintiffs that the change doesn’t make sense, though. When the lawmakers opted not to use the student-issued identification, but allowed a concealed carry permit, Gordon pointed out almost identical documentation requirements for both.
He also pointed out that expired driver’s licenses were acceptable, and that non-citizens can get concealed carry permits or driver’s licenses.
House Bill 530 prohibits ballot collectors from being paid, which voting rights advocates argue also discriminates against poor, elderly or disabled Montanans who may not be able to travel to vote.
Attorney Lars Phillips, representing Jacobsen, told the court that while every qualified resident has the right to vote, that right doesn’t mean the right to an absentee ballot or the ballot being collected.
“This is a slippery slope the plaintiffs are taking us down. That if you testify in opposition to a bill in the Legislature, that can be the basis of a discriminatory intent by simply objecting to it,” Phillips said. “The idea that you have a fundamental right for someone to pick up your ballot is a push too far.”
He said the basis for the Legislature proposing the law is rooted in Montana’s interest in controlling money in politics. He said that paying people to collect ballots is a dangerous route because of where the money may come from.
A law passed previously by the Legislature, the Ballot Interference Protection Act, was a similar measure struck down by fellow Yellowstone County District Court Judge Jessica Fehr, who ruled that prohibiting ballot collection was part of the exercise of political speech via the ballot and ran contrary to the state’s constitution.
“This manufacturing of government interest rests upon sowing seeds of doubt,” said the ACLU’s Rate.
Calling them “post-hoc” rationalizations, Gordon said that Jacobsen has created a cover for the Legislature to create and enact more restrictive laws by ginning up a narrative of cratering confidence in Montana’s election. But he accused attorneys for the state of having to go to the state historical society to even find cases of election fraud.
“This claim of crisis in voters doesn’t exist, and it’s not because of the tens of thousands of votes on Election Day. That’s not why this exists,” Gordon said. “It’s the result of spreading lies and disinformation about the 2020 Election. They’ve manufactured this crisis to implement these laws.”
17- and 18-year-olds
House Bill 506 changes the way voters who turn 18 after ballots are sent out but before Election Day can receive their ballot, which voting rights advocates say is unconstitutional because it treats those eligible to vote in a different way.
Voters who will be 18 by Election Day, but who haven’t yet turned 18 by the time ballots go out, are not allowed to receive a ballot, according HB506. On behalf of the plaintiffs, attorney Rylee Sommers Flanagan told Moses that their votes are equal and should be treated like any other absentee ballot, and only adds confusion to the law.
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