Voting rights trial hits halfway mark

The past week has been a busy one in Yellowstone County District Court, as plaintiffs and defendants in Montana’s high-profile election administration lawsuit worked through the first five days of a 10-day trial. More than a dozen witnesses took the stand, with county election officials, tribal members and individual voters answering flurries of questions from lawyers about the impacts of new voting laws passed by the 2021 Legislature.

The lawsuit, presided over by District Court Judge Michael Moses, will decide the fate of a trio of laws that ended Election Day voter registration, implemented new photo identification requirements for voters and prohibited paid ballot collection in the state. 

A collection of plaintiffs including the Montana Democratic Party, four tribal nations, youth voting organizations such as Montana Youth Action, and the Indigenous voting rights nonprofit Western Native Voice are challenging the constitutionality of the new laws. Attorneys representing Republican Secretary of State Christi Jacobsen, the case’s sole defendant, have countered that the laws were necessary to prevent voter fraud and bolster voter confidence.

So far, the trial has had its lighter moments. On Thursday, as the day’s action looked like it would wrap early, Moses stated his kids wouldn’t mind as it was his birthday — a candid moment that inspired a round of applause from both legal teams. But the weight of the events that unfolded in court was undeniable, as the testimony entered by witnesses fueled tense moments and hit on the personal experiences of voters navigating Montana’s new electoral landscape.

Here are some of the high points from the trial’s first week:

ADMINISTRATIVE BURDEN

One of the defense’s primary arguments is that HB 176 reduces the Election Day burden on local election administrators — a position originally staked out by Republican lawmakers advocating for its passage during the 2021 legislature. On Wednesday, the court heard directly from Missoula County Election Administrator Bradley Seaman on that point. Seaman acknowledged in his testimony that his office has experienced long lines on Election Day in the past, but clarified that those lines occurred at the county’s election center, where same-day registration activities were consolidated prior to their elimination.

“You can’t register at the polling place by law in Montana,” Seaman said, suggesting that the lines did not inhibit registered voters from casting their ballots at the polls.

Seaman went on to describe, in detail, the various safeguards in place for county election officials to protect against voter fraud and stated that he’s “unaware of any mistakes” he or his staff have made in the past due to Election Day registration lines. Seaman also noted two details about the new laws. In the case of HB 176, he testified that the law still allows a “small subgroup” of voters who have moved to a new precinct within the same county to update their registration and vote on Election Day. Seaman said SB 169 established a new form — known as a Declaration of Impediment — that election officials can have voters fill out in lieu of a photo ID in certain extenuating circumstances. 

The form displayed in the courtroom indicated it was created in April 2021, four days after Gov. Greg Gianforte signed SB 169 into law. Seaman testified he didn’t learn of it until February 2022.

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“I’m not certain why we didn’t see it,” Seaman said.

On cross-examination, defense attorney Mac Morris pressed Seaman about the stance various county election officials took on HB 176 during the 2021 session. Morris noted that roughly two dozen officials from rural counties expressed support for the bill in a survey conducted by the Montana Association of Clerk and Recorders. Seaman maintained that he didn’t recall the exact number of county officials who supported HB 176 but said he knew that the association’s members were split on the issue.

Also on the administrative impacts front, Montana Democratic Party Data Director Jacob Hopkins was asked Friday if he had observed any delays in ballot processing at county election offices. Hopkins said that data from Gallatin County did lag somewhat during the 2020 general election cycle. The delays, he added, were due to the county storing absentee ballots for five days before processing them to prevent election staff from potential exposure to COVID-19.

IMPACTS ON INDIGENOUS VOTERS

Attorneys on both sides spent much of late Tuesday and early Wednesday questioning Dawn Gray, managing attorney for the Blackfeet Nation, about the impacts of the new laws on Indigenous voters. Gray reiterated many of the observations previously made by expert witnesses regarding the lack of transportation and reliable mail service in reservation communities and spoke at length about recent challenges the tribe has faced in improving voter access for its members.

Gray testified that in 2020, election officials in Glacier County abruptly pulled ballot drop boxes from reservation sites three days before the election. The drop boxes were highly desirable on the reservation at that time due to the COVID-19 pandemic, Gray said.

“This was before the vaccine,” she said, “so it was scary times, and we wanted to provide safe access to voting during that time frame.”

The tribe, Gray said, responded by employing ballot collectors to assist members in submitting their ballots — an option the plaintiffs maintain is jeopardized by HB 530. The defendants said ballot collection could still be available to tribal governments pending Jacobsen’s adoption of new rules under the law.

THE FRAUD ARGUMENT

The specter of voter fraud came up repeatedly throughout the week, with defense attorneys asking several witnesses whether they’d seen any evidence of fraud occurring in the state. That narrative came to a head Friday when Leonard Smith, an attorney representing Jacobsen, cross-examined Hopkins. Smith stated that two individuals were arrested in Phillips County last year for illegally registering and voting in a mayoral election. As Montana Free Press previously reported, those individuals — a pair of non-U.S. residents employed as public school teachers —  were not arrested but are facing charges.

Smith asked if Hopkins was aware that if those two votes were found to be fraudulent, that they could have impacted the result of the election. Hopkins replied that that would depend on how the individuals voted.

Smith also pressed Hopkins about a 2016 news story about a Livingston resident complaining to law enforcement about intimidating behavior on the part of a canvasser later identified as working for the Montana Democratic Party. Hopkins said he had no knowledge of the incident as it predated his involvement with the party, but he agreed with Smith’s assertion that intimidation goes against the party’s guidelines for ballot collectors.

As for the plaintiffs’ stance on voter fraud, that was summed up Monday by expert witness Daniel McCool, a professor emeritus of political science at the University of Utah.

“As another political scientist put it, you’re more likely to die in a lightning strike than to commit voter fraud,” McCool told the court.

VOTER PERSPECTIVE

Some of the most compelling moments in the trial’s first week came from the testimony of voters, called by the plaintiffs’ attorneys to share first-hand their experiences with the new laws. Kendra Miller, a data analyst for the Montana Federation of Public Employees, laid the groundwork for this side of the trial Wednesday by telling the court her analysis of the effects of HB 176. Miller testified that through public records requests and data from the secretary of state’s office, she determined that 268 Montanans attempted to utilize Election Day voter registration during the 2021 municipal elections — 59 of whom were unable to cast their votes due to the new law.

Two such individuals took the stand this week. Thomas Bogle told the court Tuesday that he and his wife moved to Bozeman in April 2021 and registered to vote absentee that September while obtaining their Montana driver’s licenses. His wife received her ballot, Bogle said, but he never got his. He said when he arrived at the courthouse on Election Day, he was informed that his voter registration form never made it to the county elections office, and as such he was unable to vote.

Jacobsen’s legal team countered that testimony, saying it’s the responsibility of individual voters, such as Bogle, to check their elector status earlier and address any problems before the close of late registration. Under HB 176, that deadline is now noon the day before an election. 

Sarah Denson, a Miles City native now living in Bozeman, pushed back on that argument. Denson testified Wednesday that she believed she had successfully updated her residency status in 2021 when she changed her address through the U.S. Postal Service. After her absentee ballot failed to show up, she said, she visited the courthouse on Election Day and was informed that she was still registered to vote in Miles City. 

Attorney David Knobel, representing Jacobsen, asked Denson whether she could have driven to Miles City to cast her ballot in person on Election Day if she had chosen not to go to work. Denson replied that was not an option.

“So you thought that working was more important than voting?” Knobel asked.

“If I had missed work,” Denson answered, “I would have been fired.”

The trial resumes Monday in Yellowstone County District Court and is currently scheduled to conclude on Friday.