Election, disability experts testify as trial over election laws enters week Two

Monday marked the sixth day of the two-week long trial about three recently passed election laws

By: - August 22, 2022 8:50 pm

Judge Michael Moses of Yellowstone County at a court hearing on July 11, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).

The Clerk and Recorder for Ravalli County agreed during testimony Monday that three election laws passed during the most recent legislative session were a “solution in search of a problem.”

Regina Plettenberg’s testimony came on the sixth day of hearings in Yellowstone County District Court, where the Montana Democratic Party and a handful of other plaintiffs, including Blackfeet Nation, the American Civil Liberties Union and Western Native Voice, are challenging three recently passed election laws on the grounds that they would create unconstitutional barriers on access to voting in the state.

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The GOP-backed laws were passed with the idea that they would strengthen election integrity in Montana, but so far, testimony in the hearing has debunked the theory of any widespread voter fraud in the state and has asserted that the laws would only create more confusion and unfair barriers for native and younger populations.

Since the 2020 election in Montana and across the country, a growing number of people have cast doubt on America’s elections, alleging that the 2020 election was fraudulent, and some are going as far as contending Donald Trump won the election.

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.

On Monday, Plettenberg testified that increased scrutiny has created more burden for herself and fellow election workers in Ravalli County. She said she has received increased public information requests from legislators and election integrity groups about things like tabulators.

“I think that the scrutiny that we’re under has definitely grown, which puts a lot more pressure on the election administrators,” she said. Noting that most of the concerns, which she said she thinks are genuine, are related to tabulators and the physical security of elections.

However, Plettenberg said she supports moving the late registration deadline to before Election Day or effectively ending same-day registration as proposed in House Bill 176.

“I feel that for a lot of counties, especially rural counties, resources are limited … I just think that it makes it very difficult for some counties with the resources they have with staff and everything to have late registration open on Election Day. I think that’s a day we need to focus on counting the ballots, making sure we’re doing all that accurately,” she said.

Additionally, she said she believed voters would become accustomed to the new deadlines.

“I do I feel that … as any deadline that we give … I think people will push it up to that deadline, but I think the more outreach and education that we give our voters … I think voters will become accustomed to that deadline,” she said.

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But, Kenneth Mayer, a professor of political science at the University of Wisconsin-Madison with expertise in election administration, election law and voter behavior, said ending same-day voter registrations could be detrimental. Mayer testified as a witness on behalf of the plaintiffs.

In fact, Mayer said the three laws together would only “increase the costs of voting” — essentially saying together they would make it harder to vote.

“The impacts of laws that raise costs of voting are going to have a disproportionate effect on specific populations; in particular, the effects are going to be largest among low propensity voters, young, economically disadvantaged, lower education already vulnerable populations, because these are the groups that are going to have the most difficulty overcoming these costs,” he testified.

When it comes to Election Day, Mayer said that is when voters are most engaged.

“The primary effect is that Election Day is by far the most prominent day of the entire election cycle; there’s just no other day that has the same prominence,” he said. “And so the reason Election Day registration has such a large effect is that voters who are not activated, they don’t start paying attention to campaigns until late in the process, or they’re waiting to make a decision so that they have the most recent information, and that’s the reason it has such an effect. It’s prominent in ways that no other day is.”

Since 2006, 70,277 Montanans have registered to vote on Election Day, accounting for 1.16% of total registered voters, according to a report from Mayer. His report also showed that people who rely on same-day election registration are about 17 years younger than the average Montana voter.

Mayer also called voter fraud in Montana “vanishingly rare” and criticized the idea that the laws would make Montana’s elections more secure.

“These changes don’t do anything; they don’t produce any benefit. They have nothing to do with the integrity of the election process,” he said. “These changes are what the public administration literature would call pure deadweight; they are things that do nothing but make it harder to vote.”

Particularly, he said Senate Bill 169 would make it harder for students to vote as it would demote student IDs to a secondary form of ID needed to vote. And he said putting more restrictions on ballot collections as proposed in House Bill 530 would disproportionately impact already vulnerable populations, including people who live on reservations and people who are disabled.

Bernie Franks-Ongoy, director of Disability Rights Montana, testified for the plaintiffs on the unique barriers disabled people encounter when trying to vote. Disability Rights is a Montana non-profit that protects and advocates for the human legal and civil rights of Montanans with disabilities.

“There’s several different barriers … you’re going to have the transportation barrier, you may have a postage barrier, you may have a registration for vote barrier … it could be a simple barrier as having access to a pencil or pen. The barriers are tremendous,” she said.

Franks-Ongoy said her organization assists hundreds of disabled voters every year and praised same-day election registration.

“I think it’s absolutely vital for voters with disabilities to have that opportunity. Voters with disabilities have very complicated lives. And you know, every other year, whether it’s time for them to vote, they may not have done it on time,” she said. Adding, “I have a hard time when people say, well, ‘why don’t we just register to vote early.’ Until you live the life of a person with a disability or walk through their shoes, it becomes pretty complicated to make sure that that happens sometimes before Election Day.”

And she agreed with Mayer that Election Day holds a particular prominence for voters.

“Voter day … there’s something special about that day, and there’s an extra effort that many different organizations engage in on Election Day that they don’t engage in prior to Election Day,” she said.

When asked about why she decided to testify in the case, Franks-Ongoy criticized the laws for hampering the ability of disabled persons to vote.

“I think it’s pretty impressive some of the laws that we take our time and the energy to trying to prohibit people with disabilities to vote … none of these laws have anything to do with election integrity,” she said.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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