Montana Secretary of State Christi Jacobsen and 14 other secretaries of state banded together last week to demand that President Joe Biden immediately rescind a March 2021 executive order aimed at expanding voting access in America. In their letter, the secretaries argued that Biden’s order was issued “without Constitutional authority” and “ignores codified procedures and programs in our state constitutions and laws.”
“Involving federal agencies in the registration process will produce duplicate registrations, confuse citizens, and complicate the jobs of our county clerks and election officials,” the letter says. “If implemented, the executive order would also erode the responsibility and duties of the state legislatures to their situational duty within the [U.S. Constitution’s] Election Clause.”
The condemnation of Biden’s order is the latest development in a sprawling and intensely politicized debate about voter fraud and election administration that’s touched nearly every level of government in Montana and across the country. Jacobsen and her fellow signatories — the majority of whom hail from states that have passed controversial new election laws within the past year and a half — primarily took issue with the order’s directive that federal agencies draft strategic plans to promote voting, including the distribution of voter registration and vote-by-mail applications. Asked via email whether Jacobsen’s office is aware of any federal agencies engaging in such activity in Montana since the order was issued, spokesperson Richie Melby did not directly address the question.
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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?
“Montana’s state and local election officials remain focused on assisting voters to provide a great experience during the upcoming general election,” Melby wrote in response. “As previously mentioned, Montana voters can visit the secretary of state’s website or contact their county election administrator if they have any questions related to state election procedure.”
Melby added that among the root concerns shared by Jacobsen and the letter’s other signatories is the Biden administration’s “lack of consultation and communication with the states.”
The order itself was issued a year and a half ago as legislatures in more than a dozen states were considering laws to shorten voter registration periods, impose new voter identification requirements and place limitations on drop boxes for mail ballots. Supporters of such measures cited concerns about widespread voter fraud and Election Day burdens on poll workers in arguing for more stringent voting procedures. Critics countered that the proposals would restrict voter access, particularly for young voters and voters of color, and undermine the democratic process.
In Montana, lawmakers in 2021 passed a raft of new election administration laws that included new identification requirements for people registering to vote or voting at the polls, an end to Election Day voter registration, and a ban on paid ballot collection. Jacobsen supported those measures during the session, and her office has continued to defend them against a consolidated legal challenge filed by the Montana Democratic Party and a collection of youth and Indigenous voting rights groups. That lawsuit, which has already resulted in the overturning of a new ballot distribution law, will culminate next week in a scheduled 10-day trial in Yellowstone County District Court.
One of the primary arguments raised by Indigenous rights plaintiffs is that Montana’s new laws disproportionately impact voters in tribal communities, many of whom lack reliable access to transportation and mail service. Biden cited the same concerns in announcing his executive order last year, asserting that state laws often present Indigenous voters with “undue impediments to full and fair exercise” of their right to vote. His order directed the U.S. Postal Service to evaluate its ability to add routes and office hours in tribal communities and to “prioritize assigning postal addresses to homes on tribal lands” to address the issue that Indigenous rights advocates have claimed necessitate third-party ballot collection efforts.
Biden also established an interagency steering committee dedicated to Native American voting rights, which produced a 54-page report this March. The report specifically mentioned Montana’s elimination of Election Day voter registration — a practice approved by voters statewide in 2005 — as an example of states “enacting new barriers that re-establish problems that had previously been mitigated.” It also listed Montana as one of five states that “made it more difficult in the past year to help voters return completed mail ballots,” a reference to the ballot collection prohibition that Jacobsen’s attorneys will be defending in court next week.
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