Confusion remains over ballot requirement after secretary of state’s guidance

A Montana law requiring that voters write their birth year on absentee ballot return envelopes was ruled unconstitutional by a district court judge just as general election voting began last month. The ruling ended, at least at the district court level, a requirement that had caused thousands of absentee ballots to be rejected during elections held over the past year.

But an email update issued by the Montana secretary of state’s office to election administrators in early October presented the Lewis and Clark County District Court decision as potentially subject to reversal and warned that ballot “rejection rates could be historically high,” citing general confusion and the fact that the ruling came after some ballots had already been submitted.

As Montana’s top elections official, the secretary of state was a defendant on the losing side of the court decision. The communication, a copy of which was obtained by Montana Free Press through a records request placed with Missoula County, didn’t mention that District Court Judge Mike Menahan had ruled the birth year requirement unconstitutional.

Lewis and Clark County Elections Administrator Connor Fitzpatrick explained his resulting uncertainty to MTFP after voting began. Based on the secretary of state’s communication to election officials, he said, he understood that the court’s order might still be appealed, and that if an appeal succeeded, ballots without birth years could again be considered insufficient and subject to rejection. Fitzpatrick told MTFP that absentee voters should write their birth year on the envelopes just in case.

“As you know,” the email said, “judicial changes of this nature can continue to evolve, and we do not know whether this ruling will be revisited. This uncertainty is especially challenging because some voters had already cast their ballots before the ruling was issued. We are deeply concerned about the confusion this may create and the possibility that rejection rates could be historically high as a result.”

The email did not say whether the state intended to appeal Menahan’s ruling.

The message from the secretary of state drew criticism from one of the plaintiffs that successfully challenged the ballot-birth-year law. A different group concerned about partisan efforts to influence the judiciary called the email “disrespectful” of the court.

“The secretary of state’s office could have cleared this up earlier. But they chose not to, and now they’ve decided to complain in an unprofessional manner,” Trent Bolger of Big Sky 55+, a plaintiff in the lawsuit, said Friday. 

Big Sky 55+ is an advocacy group for people 55 and older. Bolger was made aware of the email by MTFP. In an earlier conversation, Bolger said the requirement itself had damaged confidence in elections.

“The date of birth requirement has undermined voter confidence by needlessly casting aside thousands of eligible voters’ ballots, while adding nothing to security,” Bolger said. “Thankfully, our Montana Constitution does not tolerate such blatant attacks on the right to vote.”

The secretary of state’s office hasn’t responded to questions sent multiple times over two days to the agency’s communications staff and to Elections and Voter Services Manager Sadie Dallaserra, who sent the update. “This is at best disrespectful. At worst, it demonstrates a lack of understanding of how democracy works,” said Betsy Brandborg of Friends of the Third Branch, referring to the secretary of state’s update. 

Friends of the Third Branch formed in 2023 in response to what the group describes as pressure from partisan sources to influence, weaken or politicize the judiciary.

“The issue is resolved. It’s that simple. The matter was litigated. The issue is resolved. They lost, and now they’re engaging in some peculiar political hyperbole,” Brandborg said.

The secretary of state’s office instructed officials not to consider the inclusion or absence of voters’ birth years when processing absentee envelopes on Election Day, but accompanied that instruction with criticism of the court decision.

“We were surprised to learn that a late-Friday court ruling has introduced a new wrinkle into this year’s elections,” Dallaserra wrote. 

Dallaserra described the timing of the court’s decision as “particularly unexpected” because, she said, she had attended the hearing and had questioned the plaintiffs about the timing of their challenge. Dallaserra referred to the plaintiff organizations, both headquartered in Helena, as “DC groups.” Dallaserra also highlighted portions of the court decision where Menahan found “there is no evidence anyone was prevented from voting due to the enactment of HB 719,” and no evidence that the law “interfered with the right to vote.”

The quotations cited by Dallaserra come from a portion of the order in which Menahan recognizes that HB 719 affects a subclass of voter, that is to say, absentee voters. People who vote in person don’t have to provide a birth year, and everyone has the right to vote in person. That subclass, the judge noted, amounted to more than three-quarters of the voters in Montana’s 2018 election.

Menahan’s constitutional analysis separately found that HB 719 imposed a “minimal burden” on voting absentee and therefore had to survive middle-tier constitutional review. The law failed that test, he concluded, because the state didn’t demonstrate that the requirement was reasonable and served a legitimate state interest more important than the burden it placed on voters. The judge also found that the state hadn’t provided evidence supporting its claim that the birth year requirement prevented election fraud.

Furthermore, Menahan found that the state neither explained how requiring a birth year promoted public confidence in elections or promoted public confidence in elections, nor provided evidence supporting either claim.

Menahan granted summary judgment to Big Sky 55+ and Disability Rights Montana on Oct. 2, concluding that the law violated the right of suffrage under the Montana Constitution. He enjoined Secretary of State Christi Jacobsen, the state and their agents and successors from enforcing the law. The order did not limit the injunction to the 2026 general election.

The court also recognized the effect of the birth year requirement on absentee ballots in three elections held since HB 719 took effect in July 2025.

In the November 2025 municipal elections, 1,814 absentee ballots went uncounted because of missing or incorrect birth year information, according to the order. Before HB 719 became law, the statewide rate for uncounted absentee ballots was half a percent.

For the May all-mail school elections, the state reported that 2,855 ballots were rejected because of the birth year requirement. During the June primary, 1,103 ballots were rejected for the same reason. The rejection rate for the spring elections was “difficult to reconcile precisely,” the judge said, because it wasn’t clear whether some of the rejected ballots were eventually cleared after voters were notified and corrected the omission.

The secretary of state’s email provisionally advised county elections officials to proceed without enforcing the requirement. 

“For now, please do not consider birth years when processing absentee envelopes on Election Day. There is no need to reprint envelopes, remove inserts, or undo the considerable work you have all completed to prepare ballots,” Dallaserra wrote. “The ruling also means that the Secretary of State’s office can no longer proceed with the extensive outreach campaign we had planned and worked on for months to remind voters to sign their envelopes and include their birth year.”

County election administrators are currently accepting ballots with or without a birth year written on the outside of the return envelope, though the envelopes still include a designated space for the information in the lower right-hand corner. 

County election officials interviewed by MTFP last week differed in their understanding of what will follow.

Gallatin County Clerk and Recorder Bret Rutherford said he understood Menahan’s order to apply to the current election, with a possible appeal to follow.

Rutherford told MTFP on Friday that his understanding was based solely on the email update from the secretary of state’s office. He said he hadn’t read the court order and wasn’t aware that Menahan’s ruling applied to more than a single election. He said he also wasn’t aware that the judge had determined the birth-year requirement to be unconstitutional.

Yellowstone County Elections Administrator Dayna Causby said her office will accept all ballots regardless of whether the return envelope includes a birth year. She said the county won’t take the precaution against a possible appeal of segregating ballots without birth years.

If the secretary of state appeals Menahan’s decision to the Montana Supreme Court, Causby said, her office will follow the Supreme Court’s instructions.