Rep. Geraldine Custer, R-Forsyth, testifies at a trial about three voting bills passed by the 2021 Montana Legislature (Photo by Darrell Ehrlick of the Daily Montanan).
It is the best of times and the worst of times in Montana.
However, which one of those statements is true depends on which elections officials you speak with, and it is at the heart of a two-week trial being conducted in Yellowstone County District Court where three laws passed by the 2021 Legislature that regulate voting in Montana are being challenged as unconstitutional.
Tuesday’s court hearing focused on election officials who testified about what happens on Election Day, voter identification and same day, or Election Day registration and voting.
Some election officials told the court that not having to worry about registering voters on Election Day helped ease the workload of small, rural counties, although two rural county administrators testified that the paperwork and processing rarely exceeds 10 minutes per individual.
Meanwhile, a former county election official and current Republican lawmaker told the court that registering voters and counting ballots was part of the responsibilities of those local officials, regardless of county size, and that the GOP worked to place impediments in the way of youth voters, especially because legislative leaders feared that Election Day registration is largely utilized by young voters at college or universities, and they believe that most of those students tend to vote liberal.
Republicans targeted youth voters
Rep. Geraldine Custer, R-Forsyth, served as the Rosebud County Elections Administrator from 1979 through 2014. After that, she was elected for four straight terms to the Montana House of Representatives from Rosebud County as a Republican.
She told the court she’d first heard about election fraud as a concern from Montana voters after former Montana Secretary of State Corey Stapleton, a Republican, adopted talking points from the national Republican stage.
“I felt like I had been punched in the gut because as an election administrator, we understand every detail and that they’re secure,” Custer said.
She said the talk of voter fraud in the state increased, even as no credible examples emerged.
“After the 2020 election, everyone jumped on the ‘stolen election’ bandwagon,” Custer said. “It’s just not possible in Montana because we have so many election security measures every step of the way, but it really stirred up the pot.”
In court, she ticked off a list of security measures from cross-checking names and addresses to a Social Security database. She detailed security cameras, protocols for handling ballots and the ballot numbering system.
“2020 was a red wave. (Former President Donald) Trump won big and we won the (state) House and the Senate and all the state land board races,” Custer said.
Custer pulled back the curtain on the legislative process, testifying that she had concerns with some of the election-related bills her Republican colleagues wanted, but worked hard to craft draft legislation that would pass constitutional muster. For example, she said that she worked through three drafts of Senate Bill 169, which changed voter identification requirements.
She also told fellow Republicans that she stood opposed to House Bill 530 which prohibited paid ballot collection and is a part of the current lawsuit. She said she told her colleagues that the new version of the bill would likely face the same legal questions as the Ballot Interference Protection Act, passed by the 2019 Legislature, often referred to as “BIPA.” That law was ruled unconstitutional by two courts in Yellowstone County.
“They (Republican politicians) just couldn’t take ‘no’ for an answer and that they were going to let the cards fall where they would,” Custer said. “But how many times do you have to beat a dead horse before you see it’s dead?”
She detailed working on Senate Bill 169 that moved toward photo identification. She said that her plan was to give Montana laws that would utilize photo identification for voting without stomping on the constitution.
However, as the bill cleared a House committee, Custer said that Speaker of the House Wylie Galt made an unusual “floor amendment” that undid the work behind the scenes, and that hastily made change by Galt had no public input.
“They said college students tend to be liberal and that was the concern with having them vote,” Custer said.
She said that the day the bill was voted on in the House, less than 48 hours before the conclusion of the session, GOP leaders were concerned about a rumor that President Joe Biden, a Democrat, would issue an executive order that would make any changes moot, so they were in a hurry.
“I didn’t think an executive order would overrule state election law,” Custer said.
She also testified that one Republican lawmaker from Gallatin County was in an Election Day line there and saw an organization that he perceived to be liberal nearby.
“He said the group wasn’t ‘in our favor,’” Custer said.
Custer said that Galt told the Republican lawmakers that college students needed to have a “stake in the game,” by having a paycheck stub or a W-2.
“Now, we have to have a job or be paying taxes in order to vote?” Custer said. “That went out in the 1960s. In general, the consensus was that young people in college lean more to the left. But, I don’t know if that’s true in Montana.”
Custer said GOP leadership wanted 100 percent vote on the election bills, something that she was not prepared to give.
Custer is “termed out” in the House, but ran for a Montana Senate seat, where Rep. Barry Usher, R-Billings, ran against her in a Republican primary. Usher beat Custer, and she told the court that her opposition to the voting laws likely targeted her for a primary race against a fellow Republican legislator.
She testified that though she had originally opposed Election Day registration as a former election administrator because of the additional work it created, she stopped opposing it after a 2014 ballot in which Montana voters decided to keep the option. Since its adoption by Montana, more than 70,000 voters have used Election Day registration.
“I believe in democracy and I believe in majority rules,” Custer said. “Why can the Legislature come back and decide that the electorate doesn’t know what they’re talking about?”
She told the court that the laws were crafted specifically to target young voters, calling it “appalling” that they had worked to get a framework of identification that she hoped would become a model, only to have it changed at the last minute.
She said that young voters, being new to the process, may not have a state driver’s license or utility bills, but do have a college-issued identification.
‘Who knows what you may have at 18?” she said. “I wasn’t going to support it because it was discriminatory, and we worked so hard. What was the difference? Did something change overnight to make voting unsafe? We didn’t have any problems and now we do?”
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.
More work vs. less work
Much of Tuesday was spent trying to determine how many people use Election Day registration in rural counties and how much it would pull away or distract judges and clerks.
“In my good conscience, (Election Day voting) isn’t going to make it less secure. Maybe it’ll make a little less work for county elections workers, but that’s the job,” Custer said. “I feel for them, but they also signed up for that.”
Doug Ellis, a former election administrator from Broadwater County, said that a small professional staff get pulled in many directions on Election Day, and eliminating same day registration helps narrow the workload.
“It takes your mind and concentration away until you’ve taken care of that voter,” Ellis said.
In a small county like Broadwater, he said many people stop into the office on Election Day for more than just casting a vote.
“They’ll come in and pay taxes, register a vehicle and want to vote at the same time,” Ellis said.
Ellis told the court he didn’t believe that voters should get to come into the office with just minutes left and be afforded the same voting opportunities as those who had registered and prepared.
“You’re not concerned that eligible voters can’t vote?” asked attorney Stephanie Command, representing the plaintiffs.
“I wouldn’t say I am not concerned, but voting is a privilege,” Ellis said. “It’s a right but it’s also a privilege, and people should be ready for it.”
“So you’re not concerned about the consequences?” Command asked.
“In my own words, a voter should be ready when it comes to elections, and they should give themselves enough time to review the candidates and vote an informed ballot,” Ellis replied.
Command asked about disabled voters or those who lived in congregate-care facilities.
“Did they become disabled on Election Day? What changed? Why did they wait till the last day?” Ellis responded.
Lawyers for the plaintiffs who are challenging the law introduced into evidence a Facebook posting from Ellis in 2018 which read, “Society has gotten to the point where everybody has a right, but nobody has a responsibility.”
Fergus County Elections Administrator Janel Tucek also testified that she stood opposed to Election Day registration because of the limited staff and large counties. She formerly held the same position in Petroleum County.
Attorneys pointed out in Petroleum County there was roughly one paid election staff member for every 200 voters, while Missoula County, which said it could handle Election Day registration, had only one staff member for every 17,000 voters.
Even though she and other election administrators could not recall a single instance of fraud involving same day elections, Tucek testified that since the 2020 election, with its corresponding debunked claims of fraud, the political landscape has changed.
“Outside groups are watching our every move, and we’re small,” Tucek said. “We’re under constant microscopes. There are so many things out of control and we’re doing what we can, and it’s also the political state we’re in.”
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