State senator admits laws could disenfranchise voters, but believes habits will change

By: - August 24, 2022 7:44 pm

Montana state Sen. Greg Hertz, R-Polson, testifies in court regarding a trio of laws passed by the Montana Legislature in 2021 (Photo by Darrell Ehrlick of the Daily Montanan).

A former Speaker of the Montana House of Representatives who is now a state senator told a Yellowstone County District Court on Wednesday that a trio of voting laws passed by the 2021 Legislature may indeed disenfranchise some voters, but eventually, those residents will adapt to the changes, including eliminating Election Day voter registration, paid ballot collection and changing the forms of identification acceptable to voters.

Sen. Greg Hertz’s testimony was part of the trial that is approaching two weeks and is challenging three bills as unconstitutional. In a trial where so many actions of the Republican-led Legislature are being questioned, it wasn’t just the laws that are under scrutiny, but the lawmakers themselves.

On Tuesday, Rep. Geraldine Custer, R-Forsyth, told the court that part of the impetus for passing the laws was a fear that more youth voters and nonprofit organizations generally tend to support liberal candidates, and the measures were seen as a way to push back against that.

Hertz’s testimony on Wednesday gave another detailed account of how lawmakers, Secretary of State Christi Jacobsen and even the Montana Republican Party worked together, especially in the waning moments of the 2021 session, to get the laws passed.

Facts vs. feelings

Hertz, a Polson Republican, began his testimony discussing the balancing act lawmakers must perform as they meet the needs of voters and process results. He said lawmakers must also guarantee “the purity of election results.” He told the court that Election Day registration and voting, which was pushed back by House Bill 176 to the day before the election, was necessary to help relieve the workload of small, rural counties.

He also testified that Montana continues to have many opportunities to vote, including no-excuse absentee balloting, registration through the Department of Motor Vehicles, and ballots being collected by family members.

Hertz described his support of House Bill 530, which limits paid ballot collection, as part of a safety measure.

“Anytime you introduce compensation to someone and, I see it in my own business, their behavior changes and they may do something they may not do and that’s especially true if you pay by the ballot,” Hertz said. “The chain of command isn’t clear, and the ballot may be left in the car and fall in between the seats and be left behind.”

Evidence introduced in Judge Michael Moses’ court show text messages and emails from Jacobsen to Hertz, as well as communications from the head of Montana’s Republican Party.

Hertz texted Jacobsen at one point asking her to specify voting identification requirements, and an email exchange between Hertz and former GOP director Spencer Merwin showed that language suggested by the Republican party operatives nearly identically mirrored what was adopted into the final language of the bill.

Hertz testified that he had not received any concerns about Election Day voting or voting fraud from his constituents.

“But I get thousands and thousands of emails,” Hertz said.

He also said he had not contacted any voters or talked to election officials beyond his district to get feedback on the bills.

Hertz said he was aware of no data that suggested Montana residents wanted Election Day changed, nor did he hear of any reported problems with ballot collection or fraudulent identification.

“There is a myriad of possibilities that would prevent voting, and HB176 is a possibility,” Hertz said.

He said that his support for the law was based on his “constituents and my own personal feelings.”

However, a little later in the trial, attorneys challenging the law presented a post from Hertz’s Twitter account in June which states, “Court cases are based on facts, not feelings.”

“But you don’t have any facts or data that Montana voters lack confidence in election integrity,” asked Matt Gordon, an attorney for several of the plaintiffs’ group.

“Just my feelings,” Hertz said.

Attorney Rylee Sommers-Flanagan, another attorney for the plaintiffs, asked about disenfranchising voters.

“I’m not sure it’ll disenfranchise voters, but it’s a possibility,” Hertz said. “But once they understand the law, they’ll adjust their behavior and do what they need to do to vote.”

“How many voters is tolerable disenfranchisement for the purposes of administrative ease?” Sommers-Flanagan asked.

“I don’t have a number,” Hertz said.

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.

Voting in Montana’s largest county

Yellowstone County Elections Administrator Bret Rutherford also appeared in court on Wednesday as an informational witness. While Yellowstone County remained neutral in an informal poll that gauged support for moving the deadline for voting back, he estimated that registering a new voter on average takes around 15 minutes.

He said that since his first election in 2006, voting trends have shifted largely. Yellowstone, Montana’s largest county, used to have 51 precincts, and now all of the in-person voting has shifted to the county-owned METRA facility. But other changes have also happened.

“Participation has increased drastically across the spectrum since 2016,” Rutherford said.

In Yellowstone County, voter registration and participation have increased as many as 3,000 voters every cycle (two years). Montana’s largest county now has 104,000 registered voters.

“If Election Day registration ends, we would move more resources to some other area,” Rutherford said. “We would still be stressed and maybe at capacity. But there could still be an influx of precinct-to-precinct voters. We will just do what the law provides. We will do our jobs. We will do what needs to be done.”

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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.