Kendra Miller speaks with Judge Michael Moses in Yellowstone County District Court on Aug. 17, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).
A database analyst hired by Montana’s largest union testified on Wednesday that during the municipal elections held in 2021, she identified 59 voters who tried to register to vote between noon the day before the election and on Election Day, but apparently couldn’t vote because of a law passed by the 2021 Legislature.
That law, House Bill 176, which eliminated Election Day Registration, and two other laws are on trial as a group of plaintiffs, including Western Native Voice, the Blackfeet Nation and the American Civil Liberties Union, claim the bills violate the Montana Constitution and disproportionately target Native Americans living on reservations throughout the state.
Kendra Miller of Bozeman testified that as a database analyst for the Montana Federation of Public Employees, she was called upon to analyze the effects of House Bill 176 since its implementation. The 2021 Legislature pushed back voting registration to the day before elections, effectively shortening the “late registration” period by 36 hours. Miller is also a familiar name as she is part of the five-person state redistricting commission as one of the Democrat-appointed representatives on the panel.
Laws on trial
The fate of three laws will be decided in this two-week trial that began on Aug. 15 in Yellowstone County District Judge Michael G. Moses. The three laws are:
Senate Bill 169: This bill changes the acceptable forms of identification used for voting. It now requires an additional form of identification to be used in addition to student identification from in-state colleges and universities.
House Bill 176: This bill eliminates Election Day voter registration in Montana. Montana has had same-day, or Election Day Registration, since 2005, but the original provision was not included in the Montana Constitution. In 2014, voters rejected an effort to dismantle same-day registration. The 2021 Legislature moved the last-chance for election registration to noon the day before election.
House Bill 530: This measure is very similar to a law ruled unconstitutional in 2020. It concerns anyone collecting a ballot. Instead of banning the practice of “ballot collection” altogether, it prohibits ballot collectors from being paid.
Using publicly available databases from the Secretary of State’s website and using the MFPE’s data request to clerks in all 56 Montana counties, Miller determined that 268 residents attempted to register during the 36-hour time period that was changed by HB 176.
“There were more than that that I don’t have identification for because clerks at the office said people came in to get the paperwork, or asked for information or went away without completing the paperwork,” Miller said.
Of that number, approximately 80 percent of those people came in on Election Day, Miller told the court. From there she further drilled down on the data and it revealed that not all of those who were registering during that short window had a municipal election they were eligible to vote in.
After compiling and analyzing the data, Miller determined at least 59 people from 10 different counties attempted to register and could have voted in November 2021, but were denied a ballot. Miller said the number may be higher because three counties did not respond to the request.
Miller also discovered that two counties, including Ravalli County, had citizens register past the noon deadline, but were processed anyway.
“One county was doing one thing and not the other,” Miller said.
More than 200,000 votes were cast during 2021, typically considered an “off election” year because only municipalities or school board elections normally happened.
Miller analyzed the 59 voters and determined that 35 of the voters were new to Montana, 16 were voters moving from other Montana counties, and the remaining eight were registered in the same county, but needed to switch precincts.
However, attorney Lars Phillips, who is part of Secretary of State Christi Jacobsen’s legal team, asked Miller if those 59 voters could have been denied a ballot for other reasons.
“You presented a theory about these 59 voters not being able to vote,” Phillips said.
“It’s not a theory,” Miller responded, “it’s a conclusion.”
“Someone might get the data and do the research and not come up with the same conclusion. Do you agree that’s possible,” Phillips asked.
“I could be wrong if there’s new information that the county has that I didn’t know about, but using the information from the public data request, and based on this information, it’s at least 59 voters who could have voted,” she replied.
Phillips asked if was possible that these 59 people could have been ineligible for other reasons, including residency requirements.
Another voter denied
Before Miller took the stand, Bozeman resident Sarah Anne Denson testified that she’d been turned away at the Gallatin County Election Office on Election Day 2021 when she tried to switch her registration and vote in the municipal elections. She was one of the 59 people included in Miller’s research as was Thomas Bogle, also of Gallatin County, who testified in the trial in Yellowstone County District Court on Tuesday.
Denson described being a Montana State University student who moved several times, and was originally from Miles City. When the 2021 ballot didn’t catch up to her, she went with a friend to the election office in Bozeman on Election Day 2021 only to be denied a ballot because the registration period had closed, consistent with HB 176.
“I was particularly excited because one of my friends who I grew up with was running for city commissioner and he had campaigned on affordable housing and being more housing friendly,” Denson said. “He was also the first person I’ve seen that’s my age running for public office.”
Attorneys for Jacobsen pointed out that she could have voted in Custer County (Miles City), but she said that she had work and couldn’t take the time to drive the six hours each way.
The clerk at the Gallatin County office confirmed she couldn’t vote because of the new law, Denson said, and wasn’t given the opportunity to vote a provisional ballot.
“I felt pretty disappointed and bummed out, and in the end, when my friend didn’t win the election, I felt that I should have supported him and I had watched my roommate register and vote the year before,” Denson said.
Confusion and voter fraud
Kiersten Iwai, the executive director of the Forward Montana Foundation, which has as part of its mission to register young voters and get them involved in the democratic process, told the courtroom that these new laws have created confusion for young voters, and that many are confused about the acceptable identification.
“These layers inhibit a person’s ability to vote,” Iwai said.
Lawyers for Jacobsen pushed back, pointing out the ways that a voter can register without having picture identification, for example having the last four digits of a Social Security number.
They also asked her questions about whether the foundation supports secure elections and measures to protect the system from voter fraud.
“I don’t get how these new laws would prevent fraud that doesn’t exist,” Iwai said.
Northern Cheyenne Tribal Councilmember Lane Spotted Elk told the court that the tribal government believes more Native Americans use ballot collectors or Election Day registration than their non-Native counterparts. He said the new rules, including HB530, which bans collectors from receiving any “pecuniary benefits,” make leaders hesitant to take action for fear of violating the new law.
“We believe we would do (get out the vote activities), but we’re not sure of the state’s interpretation,” Spotted Elk said. “The Northern Cheyenne believe in advocating for access to voting and feel very strongly about any effort to suppress the Native vote is not conducive to the Cheyenne way of life. Maybe that wasn’t the intent of the Legislature, but that’s what they did. They suppressed it.”
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.