Bills aim to repeal Montana voting, elections laws struck down in court

By: - January 13, 2023 6:19 pm

Voters stand in line to vote at MetraPark in Billings on Nov. 8, 2022. Metra is the county’s central voting location (Photo by Darrell Ehrlick of the Daily Montanan).

Two bills that would repeal Montana laws surrounding voting and elections that have been struck down by judges saw no opposition in the initial committee hearings Friday.

Senate Bill 30 aims to repeal the Clean Campaign Act, which was struck down by a federal judge last January, while Senate Bill 31 would repeal the Ballot Interference Prevention Act struck down by a Yellowstone County District Court judge in September 2020. Both are sponsored by Sen. Wendy McKamey, R-Great Falls.

“We support Senate Bill 31,” said Patrick Yawakie, testifying on behalf of the Blackfeet Tribe and Red Medicine LLC. “The Ballot Interference Prevention Act has been ruled unconstitutional, but in an effort to provide an opportunity for more access to elections, we need to acknowledge the damage that BIPA has done to democracy in Montana.”

The American Civil Liberties Union, ACLU of Montana and Native American Rights Fund challenged BIPA in March 2020. The law was approved by 64% of Montana voters in 2018 after the Republican-held Montana Legislature sent the bill to voters in 2017.

The measure limited the number of ballots to six that one person was allowed to collect from other voters and return. It also asked people to sign a registry if they were returning ballots for a family member or someone for whom they were caring at the time.

The opponents who sued said BIPA made it harder for Indigenous people living in rural parts of Montana to have their votes submitted because it is difficult to travel to polling places and post offices, and many do not have the economic means to drive dozens of miles to vote.

A judge agreed, writing that the costs incurred by voters were “too high and too burdensome.” The court found the law violated people’s constitutional right to vote and their right to free speech.

Yawakie said at Friday’s hearing that Heart Butte, on the edge of the Blackfeet Indian Reservation of Montana, was a good example of what Indigenous voters in rural Montana face.

He said it only recently got its first gas pump and that it lacks resources much of the rest of Montana has access to.

“It is crucial to democracy to provide these ballot services to communities like Heart Butte because of their lack of transportation, postage – even timing of ballots being sent in is an issue,” he said. “… We should, with the repealing of BIPA, focus more on providing more accessibility to electors in Montana. This can provide a clearer picture of the direction that Montana wants to go.”

BIPA was cited in another judge’s ruling in September when he struck down HB530, which prohibited paid ballot collectors in Montana.

Scott Cook, with the Commissioner of Political Practices, testified Friday in favor of the bill as well. He said there was still confusion among some voters, even after the law was blocked, who sent in BIPA forms in the 2021 and 2022 elections.

“We had to spend COPP staff time and energy explaining the court decision and that this was no longer required to individuals, which quite frankly is a waste of agency time and resources,” he said.

SB30 repeals the Clean Campaign Act, which was a law passed in 2007 that required political committees to give candidates a copy of a campaign advertisement that runs within 10 days of an election if it referred to, but did not endorse, that candidate.

But a judge struck it down in January of last year after Montana Citizens for Right to Work challenged it. The group argued since the law did not require committees to also notify candidates they were endorsing, its Fair Notice provision violated the First Amendment of the U.S. Constitution because it restricted content and failed to meet strict scrutiny requirements for limiting speech.

The judge said that politicians, under the First Amendment, must “tolerate insulting, even outrageous speech” and that even if negative campaign ads and mailers are distasteful, they do not violate the First Amendment.

“Many would agree that while Montana’s desire to promote discourse in response to negative campaign advertisements is laudable, the First Amendment cannot be so easily overcome,” U.S. District Court Judge Donald Molloy wrote in his opinion, adding that the law had the potential to chill campaign speech just before an election.

Molloy also found the law violated the Equal Protection Clause because no evidence was provided as to why treating political committees offering different messages – negative or positive – served the state’s interest.

McKamey and Cook told the committee that both laws are now unenforceable and should be repealed – with McKamey referring to the statutes still on the books as “clutter.” The measures came out of an interim committee this past summer that unanimously supported running both repeal bills, McKamey said.

The committee had hoped to take executive actions on both measures, which would take effect immediately once they are signed by the governor, but Sen. Theresa Manzella, R-Hamilton, wanted to know if either could still be appealed.

The committee staffer for the hearing said he would have to look at Federal Rules of Civil Procedure to check, so executive action on each was pushed to another hearing.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.