Where Montana’s special election committee stands

Among the torrent of bills facing a make-or-break Friday deadline in the 2023 Legislature is a trio of proposals tied directly to the work of a special six-lawmaker panel tasked with exploring ways to improve and enhance Montana’s election system.

The Legislature’s Joint Select Committee on Election Security has spent much of the past two months sifting through the intricacies of how state and local officials prepare for, conduct and audit Montana elections. Committee members have received extensive presentations from the secretary of state’s office, from county election administrators and from executives with ES&S, the company that manufactures Montana’s vote tabulating machines. They’ve also fielded public comment from a dedicated band of citizens regarding allegations of impropriety and purported vulnerabilities in the voting process.

Lawmakers from both parties have spoken repeatedly this session about the need to reaffirm and rebuild public trust in elections. Former President Donald Trump’s loss in November 2020, and his efforts to challenge those results, fueled a national movement of denial and skepticism that continues to produce widespread claims of voter fraud and election insecurity. Many of those claims have been disputed or debunked by election researchers, but as the committee has learned this year, the underlying suspicions are not so easily dismissed. Even legislators who voice confidence in the integrity of Montana’s elections suggest that there’s room for improvement.

The select committee has focused its policy efforts primarily on two key pieces of election infrastructure: absentee voter lists and the state’s electronic vote tabulators. The committee’s chair, Sen. Carl Glimm, R-Kila, told Montana Free Press Thursday that those proposals have received a positive response from the broader body of lawmakers on the Senate side.

“They were items that were well fleshed-out in the [select] committee,” Glimm said. “That’s why they’ve had good bipartisan support.”

Here’s a look at where the debate has led so far.

COMMITTEE BILLS

Unlike the vast majority of legislative committees, the election security select committee doesn’t have authority to advance bills directly to the House or Senate floor. Any proposals it crafts must be forwarded to a standing committee for consideration, which is how three new election-centric measures landed before the Senate State Administration Committee this week.

The first, Senate Bill 481, would require the 46 Montana counties that use electronic voting machines to collect machine-produced spreadsheets known as “cast vote records” and digitally retain them for a period of seven years. At the national level, election skeptics view cast vote records as a valuable tool for detecting voter fraud, a claim researchers have repeatedly contested. Public requests for cast vote records swept across Montana last year, with Lewis and Clark County receiving 113 such requests on a single day in August.

While crafting SB 481 last month, members of the select committee debated the potential legal issues involved in making certain voting records available to the public. The Montana Constitution guarantees citizens the right to ballot privacy, and the committee was unable to reach consensus on whether that protection extended to cast vote records or ballot images,  digital snapshots of individual ballots taken by a tabulator that several members argued unsuccessfully to include in the bill. SB 481, sponsored by Glimm, ultimately materialized as a records retention measure that grants the release of cast vote records in the event a judge determines there is probable cause to investigate election impropriety.

The committee’s back-and-forth underscored a fundamental difference of opinion about what its members were hoping to accomplish with regard to cast vote records. Sen. Theresa Manzella, R-Hamilton, argued that requiring judicial approval to release cast vote records would hamper independent citizen investigations that members of the public might wish to launch into an election. Rep. Ed Stafman, D-Bozeman, countered that enabling such investigations would be “bad policy” and result in “chaos” on par with Arizona’s controversial 2020 audit.

“We don’t want a parallel citizen group repeating the job of the [county] clerk and recorder,” Stafman said. “That doesn’t promote election integrity, that detracts from election integrity.”

Jennifer Hensley, speaking on behalf of Missoula County before the Senate State Administration Committee Feb. 25, supported the measure. She said county officials would be happy to invest the estimated $119 in a thumbdrive suitable to retain the records if doing so “increases the confidence in our election process.” Montana Association of Counties Executive Director Eric Bryson testified against the bill on the grounds that it would require counties to purchase specialized computer equipment necessary to pull records from the machines without offering state funding for those expenses.

Bryson repeated his concern moments later during testimony on Senate Bill 482, the second of the select committee’s proposals carried by Glimm. That proposal would mandate that county election offices conduct a so-called hash validation test on tabulators before and after every election. As Glimm explained in his introduction, a hash validation test compiles the unique sequence of 0s and 1s in an individual tabulator’s programming into a single number, providing a baseline to determine whether that programming has been manipulated. In response to questioning from Sen. Wendy McKamey, R-Great Falls, Bryson estimated the equipment costs for counties to comply with SB 482 at roughly $666,000. 

On Monday, the Senate State Administration Committee approved SB 481 on a 9-1 vote and SB 482 on an 8-2 vote.

The third piece of the select committee’s policy rollout is Senate Bill 498, sponsored by Sen. Shane Morigeau, D-Missoula. The proposal would require counties to conduct routine maintenance of their absentee ballot lists by comparing those lists to national change of address files. SB 498 also calls for notices to be mailed to all absentee voters to confirm their addresses, and for targeted notices to be sent to anyone who does not respond or did not vote in the preceding federal election. If a voter fails to respond to the second mailer, their status would be changed to inactive until they appear in person at their county election office with proof of their address.

The committee initially debated whether to require absentee voters to reaffirm their status annually and return renewal cards via mail or be removed from the absentee list. Morigeau and Stafman opposed both provisions, resulting in their removal. The Senate State Administration Committee approved SB 498 unanimously. 

All three bills passed initial votes on the Senate floor Thursday.

MORE WORK AHEAD 

One major component of the select committee’s work remains pending: a measure establishing a new branch of enforcement at the Montana Department of Justice dedicated solely to election law violations. 

Committee members have yet to agree on exactly what that proposal will look like. In hearings, Republicans have expressed a desire to replicate similar efforts in other states including Texas, and Manzella stressed her opinion that a cybersecurity expert be a required part of any investigative unit. Democrats, meanwhile, have questioned whether additional state staff would be required, and continue to stand firm on ensuring that election officials are protected against intimidating behavior. Prior to this week’s transmittal crunch, both sides appeared to be growing closer to consensus, with Morigeau acknowledging the need for a central “hub” for election workers and concerned citizens to turn to with election-related complaints and inquiries.

Unlike the other three bills to emerge from the select committee’s two-month span of hearings, that fourth piece isn’t subject to Friday’s cutoff date. A working draft of the proposal calls for a $175,000 appropriation for the Department of Justice to fund two additional staffers for a “election security and integrity office.” Friday is the last day to request appropriations bills, and those bills aren’t required to be transmitted from the House to the Senate until April 3. In other words, the committee’s work on the enforcement front will continue apace when the Legislature reconvenes for its second half next week. Glimm anticipates the committee will have one final meeting to button up that proposal before dissolving for the remainder of the session.

“Considering we needed three-fourths support of the committee members to approve anything, we actually did great to get four bills passed,” he said.

This story was updated March 2, 2023, with comment from select committee chair Sen. Carl Glimm.