Fourth lawsuit filed over Election Day registration rollback

A coalition of Montana labor unions, disability rights advocates and individual voters announced a lawsuit today requesting that a Cascade County District Court judge preserve Election Day registration and declare a recent law eliminating it unconstitutional.

The complaint alleges that House Bill 176, passed by the 67th Montana Legislature and signed into law April 19 by Gov. Greg Gianforte, infringes on Montanans’ fundamental right to vote as guaranteed in the state Constitution. It was filed against Secretary of State Christi Jacobsen by the Montana Federation of Public Employees, the Montana AFL-CIO and the Montana Association of Centers for Independent Living, along with five school teachers, four state employees and a former educator now enrolled as a law student at the University of Montana.

MFPE President Amanda Curtis told Montana Free Press the union’s decision to join the lawsuit was based on its longstanding principle to oppose legislation that would “deny or impede any eligible Montana citizen’s right to register and vote.”

“When House Bill 176 passed at the Legislature, first of all, we opposed it and sent in messages and tried to keep it from passing,” Curtis said. “And since we lost at that level and the bill was passed and was signed into law, we don’t give up because that’s just who we are and what we do. On behalf of our members, we’ll continue to fight this issue to protect voting rights for not only our members but their families and Montana communities.”

SOS spokesperson Richie Melby provided the following statement by email: “The most recent partisan lawsuit filed against the Secretary of State is completely baseless, especially considering when the Constitution was signed, the voter registration deadline was 30 days before an election; but the smoke and mirrors attempt to portray House Bill 176 as some kind of constitutional crime — HB 176 is squarely constitutional.”

According to data from the secretary of state’s office, 8,172 Montana voters in 52 counties utilized Election Day registration services during the 2020 general election. Those services include registering to vote and updating individual voter information. Election Day registration was approved by statewide ballot initiative in 2004 and enacted in 2005. The highest volume of Election Day registration activity recorded by the SOS office to date was during the 2016 general election, when 12,055 voters across all of the state’s 56 counties utilized same-day services. A ballot measure in 2014 to eliminate Election Day registration was rejected by 57% of voters statewide.

Lawmakers this spring made several arguments for eliminating the practice, including claims that same-day registration poses a threat to election integrity and makes it more difficult for county election officials to conduct elections. Gianforte signed HB 176 alongside Senate Bill 169, which implemented stricter photo identification requirements, saying the new laws would “help ensure the continued integrity of Montana’s elections for years to come.”

Wednesday’s lawsuit counters that ending Election Day registration puts Montana workers and disabled individuals at a disadvantage by decreasing their access to the polls. Echoing statements made by HB 176 opponents during the Legislature, the complaint notes that election offices are only open from 8 a.m. to 5 p.m. with one exception: Election Day. By eliminating same-day registration, the complaint argues, the new law removes the opportunity for people working normal business hours to register or update their voter information on the one day election offices are open late. The complaint further alleges that for disabled Montanans, Election Day registration has eliminated the necessity to make multiple trips to election offices in order to vote.

“Conversely,” the complaint reads, “repealing election day registration decreases voting accessibility by increasing the number of trips, which creates added burdens and barriers to voting for Montanans with disabilities than for the population as a whole.”

The complaint also maintains that the ability to update voter registration information on Election Day is critical in correcting any errors that might occur when election workers transfer written information into the state’s voter database. Plaintiffs note that HB 176 does not forbid such Election Day updates for voters who may have moved to a new address within the same county, a distinction they say “arbitrarily discriminates against Montanans based on where they move.”

Speaking by phone with MTFP Wednesday, plaintiff Samantha Harrington said that without Election Day registration, she would have been unable to cast her vote in the 2012 general election. Harrington, a Great Falls native, first registered to vote in Missoula County while in college in 2008, but returned to Great Falls for work in May 2012. She was employed at the time helping students with addiction and mental health issues at C.M. Russell High School, and while she said updating her registration was not “on her radar” that fall, her work hours would have prevented her from doing so prior to Election Day. When she arrived at the polls to vote in the 2012 general election, she learned she was still registered in Missoula. She updated her registration and voted that evening.

“There was no feasible way that I could have done that if [HB 176] was in place at that time because of my work schedule,” Harrington said. “I also worked until 4:30 or 5, so if I were to have had to drive to the county I was registered to cast my vote, it’s about a three-hour drive, and there was no way that I would have made the time cutoff.”

Harrington, a current MFPE member who now works for the Montana Department of Public Health and Human Services, said she joined the lawsuit because she’s “very much on the side of voter access.” Harrington added that she’s voted in every general election since 2008 and in every primary election since 2016. She also contacted legislators weekly during the legislative session this spring regarding bills she supported or opposed, though she could not recall if she had written to lawmakers about HB 176 specifically.

“I take my ability and my right to vote very seriously,” Harrington said.

HB 176 is also being challenged in three other separate lawsuits. The first was filed by the Montana Democratic Party in Yellowstone County District Court shortly after the bill was signed. The second was filed in the same district in May by the ACLU of Montana and a coalition of Montana tribes and Native voting rights organizations. A third lawsuit was filed in Yellowstone County this month by Montana Youth Action, the Montana Public Interest Research Group and the Forward Montana Foundation. Jacobsen has filed a motion to dismiss portions of the Montana Democratic Party’s complaint, but has not requested any dismissals to date in the other two cases.

Curtis acknowledged that the new law has already been challenged, but noted that, to her knowledge, none of the previous lawsuits specifically address the issue of Montanans not being able to update their voter registration status outside of normal business hours. “I also don’t know of another lawsuit that specifically names members of the disability community,” she added.

This story was updated Sept. 23, 2021, to include post-publication comment from the secretary of state’s office.