Making the case on voting rights

Attorneys on either side of a consolidated lawsuit challenging new state election laws delivered arguments Thursday before Yellowstone County District Court Judge Michael Moses, with much of the debate centering on one critical question: Do the laws, passed by the Legislature last year, infringe on Montanans’ constitutional right to vote?

The case is a combination of three lawsuits filed separately against Secretary of State Christi Jacobsen last year by the Montana Democratic Party, the Indigenous rights nonprofit Western Native Voice and the voting rights nonprofit Montana Youth Action, as well as four Montana tribal nations and several other state-based nonprofits. The lawsuits were merged in December, and together the plaintiffs have sought a court order blocking laws that ended same-day voter registration (House Bill 176), changed state voter ID requirements (Senate Bill 169), outlawed paid ballot collection (House Bill 530) and prevented election officials from distributing ballots to minors who will turn 18 within 30 days of Election Day (House Bill 506).

Arguing on behalf of the plaintiffs Thursday, attorney Alex Rate with the ACLU of Montana alleged that paid ballot collection has played a crucial role in enabling Native Americans to vote. He noted that in 2018, Western Native Voice collected and delivered 800 ballots in tribal communities around the state. In 2020, he added, that figure was 500. With many Indigenous Montanans already challenged by endemic poverty and lack of transportation and residential mail delivery, Rate speculated that HB 530 could be “the straw that breaks the camel’s back” in Native voters’ ability to cast a ballot.

“If a voter is faced with a choice between buying groceries for their children or buying a tank of gas to travel to the elections office, what decision do you think that voter will make?” Rate asked. “One way to reduce these voter costs is to have your friendly neighbor Western Native Voice or Montana Youth Action or [Montana Public Interest Research Group] organizer — a trusted member of the community — show up at your front door and deliver your ballot to the ballot box. But of course, that’s not permitted under the clear language of HB 530.”

Defense attorney Lars Phillips with the firm Crowley Fleck countered that argument by noting that HB 530 directs Jacobsen’s office to address the issue of ballot collection through administrative rules. That process, Phillips said, has not yet taken place, and when it does it will include opportunities for the public and groups such as Western Native Voice to weigh in.

“I think that this case is too early, and I think that there is nothing more than speculative harm,” Phillips said. He also claimed that the broad parameters in HB 530 could allow tribal governments to use groups such as Western Native Voice as authorized ballot collection entities.

Attorney Matthew Gordon with the Seattle-based firm Perkins Coie, also representing the plaintiffs, took up the argument against HB 176, stating that more than 70,000 Montanans — more than 7% of all registered voters in the state — have utilized same-day voter registration since its inception in 2006. Elimination of that practice, he continued, will be felt broadly across Montana, but more acutely by groups that already face barriers to voting. 

The groups Gordon specifically cited were tribal members, youth voters and elderly and disabled people. Quoting 2021 legislative testimony from Disability Rights Montana attorney Beth Brenneman, Gordon characterized same-day voter registration as a “godsend” for disabled people in particular.

“Eliminating Election Day registration has already had an effect,” Gordon said, “and you see that in the declarations from [Missoula County Election Administrator] Bradley Seaman, [Gallatin County Clerk and Recorder] Eric Semerad and [Democratic districting commissioner] Kendra Miller talking about people who were turned away from the polls at the election in November.”

Defense attorney Dale Schowengerdt, also with Crowley Fleck, argued that delegates to Montana’s 1972 Constitutional Convention intentionally left the issue of same-day voter registration to the discretion of the Legislature. And the Legislature’s decision to eliminate the practice last year, he added, came in direct response to concerns about administrative burden placed on county election officials. Election Day is busy enough, Schowengerdt said, without county staff also having to register voters. 

“These election administrators, especially in small counties, testified in the Legislature and submitted affidavits to this court saying that it’s a burden,” Schowengerdt said. “It Increases the length of lines, it makes it harder to report results in a timely fashion.”

Schowengerdt added a claim that delays in posting timely election results to the secretary of state’s website undermine public faith in efficient, well-run elections.

Attorney Rylee Sommers-Flanagan of the Helena-based firm Upper Seven Law closed out the plaintiffs’ arguments by touching on the alleged impacts of SB 319 and HB 506 in making it more difficult for young voters to access the polls. In narrowly targeting individuals under 18, she said, the latter law runs afoul not only of suffrage rights enshrined in the Montana Constitution, but of a provision extending all constitutional rights to minors. 

Sommers-Flanagan also emphasized that the combination of HB 506 and the elimination of same-day registration renders it impossible for a person who turns 18 on Election Day to vote if they failed to pre-register ahead of time.

In her conclusion, Sommers-Flanagan spoke directly to another issue that’s been central to the broader debate over state election laws: election integrity. Republican lawmakers routinely stated last spring that HB 176, SB 319 and other statutory changes are essential to safeguard the security of Montana’s electoral processes. Jacobsen and the attorneys representing her office have likewise stood firm in defending the protective virtues of the new laws.

Despite such claims, Sommers-Flanagan maintained that there is “no evidence of voter fraud in Montana,” and that manufacturing the issue based on false information is “not only being disingenuous, it’s genuinely nefarious.”

“Even if we assumed that the secretary’s boogeyman of voter fraud was real, the laws that we are looking at today, they’re not narrowly tailored to end voter fraud or to increase voter confidence,” Sommers-Flanagan said.

Gordon echoed that sentiment in the plaintiffs’ rebuttal, citing a survey released early Thursday by the Brennan Center for Justice showing one in five election officials polled nationwide plan to leave their posts before the 2024 presidential election. The primary reasons, according to the survey, are stress and attacks by political leaders on the election system.

“That’s what’s adding to the burden for election administrators,” Gordon said. “It’s the perpetration of the misinformation about what went down in the last election. If the secretary is really concerned or really interested in making election administrators’ jobs easier, then the secretary should take aggressive action to stamp down the flow of misinformation about that election, which her predecessor said was safe and secure.”

Judge Moses closed the hearing saying he had “a lot of work to do.” He did not indicate when he might issue a ruling on the injunction request.