Weighing the evidence in Montana’s voting rights lawsuit

A consolidated effort by the Montana Democratic Party, Indigenous and voter advocacy groups and others to challenge a suite of four new election administration laws passed by the GOP-led Legislature last year has come to a head in Yellowstone County District Court. Pulling from sworn statements, expert testimony and supporting exhibits, legal teams on either side of the case have presented a high-elevation view of their respective arguments. Plaintiffs say the new laws disenfranchise Montana voters, namely those who are young, Native, elderly or disabled. Defendants say the laws are necessary to run secure and efficient elections.

Those brief summations, articulated most recently in a hearing last month, barely scratch the surface of the considerations facing District Court Judge Michael Moses, who on Wednesday issued a preliminary injunction blocking implementation of the four laws while litigation continues.

The Montana Democratic Party, Western Native Voice, Montana Youth Action and other plaintiffs have amassed hundreds of pages of supporting material to back their charge. Secretary of State Christi Jacobsen, the defendant and elected overseer of the state’s electoral system, has responded in kind. 

Legal battles of this magnitude — in which the very constitutionality of state law is examined — are hardly decided overnight, and Montana is inching ever closer to the one-year anniversary of the first challenge to this particular set of laws. As Moses continues to weigh the arguments, several filings entered by both parties begin to offer clarity on the case’s central question: Since the 2021 session concluded, how have the end of Election Day voter registration, the implementation of new voter identification requirements and the prohibition on paid ballot collection already impacted voters and local election officials?

THE VOTERS’ EXPERIENCE

So far, Montanans’ sole experience with the new laws has come during municipal elections held last year. For some voters identified by the plaintiffs, that’s proven enough to feel the full weight of the changes. In declarations to the court, three Bozeman residents outlined similar stories about how House Bill 176, which ended Election Day registration, limited their ability to vote. All three believed they had registered to vote in Bozeman’s 2021 city election, only to find out after the new registration deadline — noon the day before Election Day — that wasn’t the case.

Malia Bertelsen, a Bozeman native, informed the court that she’d returned to Montana in May 2021 after graduating from college in Vermont. She was unaware, she said, that registering to vote in a mayoral election in Vermont meant her voter status in Montana had been canceled. She had also believed she could still register on Election Day to vote in Bozeman’s 2021 municipal election. When she arrived at the polls the afternoon before Election Day, she said, she was told she would be unable to cast a ballot.

“I was excited to vote in 2021,” Bertelsen said. “I believe that local-level offices are an important part of our democracy, and I wanted to make my mark on Bozeman. What’s more, I was particularly invested in one city commissioner race and wanted to support a candidate that had been part of a task force to promote women’s rights in the city. I was very sorry to learn I would not have that opportunity.” 

Gavin Zaluski’s declaration indicates that he too was taken off-guard at the polls. A Montana State University student from Ravalli County, he said he believed he’d successfully updated his residency by filling out a registration form on campus. However, he discovered at 4 p.m. the day before the 2021 election that he was still registered at a previous address in Missoula.

“I was not able to return to Missoula to vote before the close of the polls on election day,” Zaluski said. “The trip would have taken me more than three hours each way, and I had an exam on Tuesday, November 2.”

Thomas Bogle was a new arrival to Bozeman in spring 2021. According to his declaration, he and his wife registered to vote absentee when they obtained their Montana driver’s licenses. As the municipal election neared, Bogle said, his wife’s ballot arrived in the mail but his did not. Faced with the dual commitments of being a small-business owner and full-time caretaker for their infant daughter, Bogle said he put off going to the Gallatin County clerk’s office until Election Day, at which point his ballot still hadn’t arrived. 

“When I arrived, the elections official informed me that I was not registered to vote in Montana,” Bogle stated. “The official told me that he could see in the system that I had requested an absentee ballot, but the actual voter registration had never been sent from the DMV to the county clerk for processing. As a result, my ballot was never sent out.”

AN ‘IMPORTANT FAILSAFE’

Two county election officials, both from Montana cities with university campuses, indicated in arguments supporting the plaintiffs that such voter experiences weren’t unique last year. Gallatin County Clerk and Recorder Eric Semerad, who has overseen the county’s election department for the past decade, said Election Day registration has become an “important failsafe” in registering voters since Montana adopted the practice in 2006. Even in a low-turnout municipal election, he said, ending same-day registration in 2021 prevented 17 qualified Gallatin County residents from voting.

“While these individuals were able to update their registration at that time,” Semerad said, “they were not permitted to cast a ballot for the 2021 contests.”

Semerad added that Gallatin County had already taken steps to improve its Election Day registration process before the change, including the establishment of a satellite office at the county fairgrounds in 2020. Now, he said, he expects more voters will “continue to lose their ability to vote because of the deadline change.” He also declared that he knew of no instances of voter fraud or impersonation in Gallatin County arising from past ballot collection efforts on the Montana State University campus or from the use of student IDs to register and vote. Under one of the challenged laws, Senate Bill 169, use of a student ID requires a voter to additionally present a second form of ID such as a utility bill or bank statement.

In a separate declaration, Missoula County Elections Administrator Bradley Seaman echoed Semerad’s positions. Seaman said the county has served “thousands of voters” with Election Day registration over the years and has been able to make reasonable accommodations for that work.

“Despite extensive public outreach about the lack of Election Day registration, Missoula County had to turn away eight otherwise eligible voters who arrived on November 2nd,” Seaman said. “These voters would have been able to vote under the previous law.”

LINES AND LIMITATIONS

Other county election officials have different opinions, according to three declarations filed by the secretary of state’s legal team, and argue that same-day registration places unnecessary stress on their resource-strapped offices.

One came from Janel Tucek, who served as clerk and recorder in Petroleum County for nearly four years before moving to the same position in Fergus County, which includes Lewistown, in January 2021. In the case of Fergus County, she noted that she and her deputy are the only full-time employees dedicated to election work across the county’s six polling locations, which are staffed on Election Day by volunteers.

“Ending election day registration makes it easier to administer elections by allowing us to focus on processing votes, and managing issues from the various polling locations,” she continued. “This is important because, due to the increased scrutiny facing my office and our poll workers, many [volunteers] who have worked on elections for years are retiring due to the added stress.”

Tucek’s assessment echoes a declaration from Doug Ellis, recently retired clerk and recorder for Broadwater County. Ellis, who oversaw elections in Broadwater County from 2012 through last year, said registering voters on Election Day “complicates an already challenging day for election administrators and poll workers.” Even a line of just 12 new registrants can result in prolonged wait times at the polls, Ellis said.

“I recall a voter showing up to be registered as late as 7:58 PM on election day in the 2020

presidential election,” Ellis said. “We had to wait for the voter to complete the voter registration process and vote. At the same time, we were trying to count the ballots and get the results to the state so that candidates can know who won the election.”

Flathead County Clerk and Recorder Monica Eisenzimer also cited limited staff and long lines to vote in her declaration. By 7 a.m. on Election Day, she said, the Flathead County Election Office is the site of a continuous line of 100 or more people, and the five to 10 minutes she estimated it takes to register a new voter “takes staff time away from other tasks.” According to Eisenzimer, halting Election Day registration will enable her staff to better help Montanans cast their ballots.

“Ending voter registration at noon before the Election Day allows us to spend more time assisting individuals who have special circumstances preventing them from being able to vote in person,” Eisenzimer stated. “For example, we can spend time to allow individuals who are ill or in the hospital to be able to exercise their right to vote.”

Joining the chorus of election officials in the defendants’ filings was a voter declaration supporting the new laws from MSU student Caleb Lowe. A first-time voter in 2020, Lowe said he was given ample opportunities to register through various organizations active on campus and could easily have satisfied any of the voter identification requirements in place at the time. Speaking in favor of the voter ID law, he said he knows of no fellow MSU students who lack a driver’s license, or a student ID and bank account to use in tandem as the new law now mandates. Lowe concluded his declaration by expressing the confidence SB 169 has instilled in him as a voter.

“I am more likely to vote — and to trust the legitimacy of Montana election results — if voter identification laws are in place because that is the only way I will be confident my vote will count and not be offset by invalid or unlawful votes.”

While the insights offered in these declarations primarily serve to boost the argument of the lawyers who entered them, they’ll likely play an important role in Judge Moses’ deliberations as he moves toward a final resolution on the constitutionality of the new laws.

With Montana facing a slate of federal, state and school board elections in the coming months, that decision will have a significant impact on the state’s electoral landscape in 2022.

This story was updated March 10, 2021, to reflect Judge Michael Moses’ grant of a preliminary injunction against HB 176, SB 169, HB 530, and HB 506.

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