Montana’s election system is voter-friendly and there’s no proof new restrictions on ballot collection prevent anyone from voting, attorneys for the state argued Wednesday.
Trial in a lawsuit brought by the Montana Democratic Party and the Democratic Senatorial Campaign Committee against Secretary of State Corey Stapleton began Monday before Yellowstone County District Judge Donald Harris.
The groups are challenging new restrictions on third party ballot collection. They argue the ability to give a completed ballot to someone else without limits for return to the elections office helps ensure everyone can vote.
Their case also challenges two longstanding election deadlines in Montana law, arguing they place too great a burden on voters. They're asking the court to find that the ballot collection law and both deadlines violate the Montana Constitution.
Attorneys for the state describe Montana’s election laws as voter-friendly.
Montana is among the minority of states that allow voters both to register to vote and to cast a ballot on Election Day. No photo ID is required to register. Anyone can sign up for absentee ballots to be mailed to their home, in perpetuity.
In addition, satellite polling places are set up in counties that have Native American reservations within their bounds so that voters on reservations don’t have to travel as far to the county courthouse to vote, in recognition of inconsistent mail service and other access issues unique to reservations. People can also track the status of their absentee ballots online, the state notes.
The new restrictions being challenged are a part of the Ballot Interference Prevention Act, a referendum voters passed with 63% approval in 2018.
The act limits people to dropping off no more than six ballots completed by other individuals. Delivering more ballots is punishable by up to $500 per ballot in excess of the limit.
Still, those ballots dropped off will be counted, even if the person who delivered them is fined, the state notes.
The ballot collection law was suspended earlier this year by both Harris and Yellowstone County District Judge Jessica Fehr. Fehr is hearing a parallel challenge to the law in a lawsuit brought by advocacy group Western Native Voice and five tribal governments.
The cases in Yellowstone County are among several legal battles underway across the U.S. in response to voting regulations some groups see as disenfranchising.
The litigation comes as President Donald Trump and others have continued to push baseless claims of widespread voting fraud ahead of the November election.
The June primary would have been the first statewide election conducted after the law was passed. But because the law was suspended, an expert for the state argued there’s no way to tell if the law in fact is disenfranchising voters, as the plaintiffs in both cases argue.
According to a University of Montana professor who studies elections, that’s the wrong approach to the issue. When constitutional rights are involved, there’s a higher bar to meet.
“The question is not whether there is proof of no fraud in ballot collection, but instead whether there is proof of fraud in ballot collection that could justify the law,” Anthony Johnstone told The Billings Gazette in an earlier interview. “Because the starting point is the right to vote, not the suspicion of voters committing fraud.”
The law was pitched as a safeguard against voter fraud, which is rare. It put a stop to unstaffed ballot drop boxes used by election officials to collect ballots, as well as to organized ballot collection efforts. Groups like the Montana Democratic Party, the Montana Public Interest Research Group and others orchestrated ballot collection efforts before the restrictions were passed.
Both Stapleton and Commissioner of Political Practices Jeff Mangan have interpreted the law to apply only to ballots delivered in person, and not to ballots placed in the mail.
Under questioning from plaintiffs attorney Matthew Gordon, Director of Elections and Voter Services Dana Corson said that it would not be a violation of the ballot collection law to gather ballots from 300 strangers and put them in the mail. Likewise, it would not violate the new law to keep the ballots or destroy them. The law was pitched as an elections safeguard.
Gordon asked Corson whether ballot collection increases voter participation and turnout, both of which Corson had said promote democracy. Corson said yes.
“So (the ballot collection law) outlaws and prohibits the very thing that the Secretary and you have said is good for democracy, correct?” Gordon asked.
“Yes,” Corson said after pausing.
The ballot collection law originated after Sen. Al Olszewski, R-Kalispell, reported receiving complaints from two constituents about “pushy” ballot collectors coming to their homes. Olszewski sponsored the legislation.
No members of the public spoke in support of the bill during legislative hearings. A lobbyist for the Montana Association of County Clerks and Recorders and the Lewis and Clark County elections administrator spoke on behalf of elections officials across the state in opposition. They characterized the law as a solution in search of a problem and said the requirement for ballot deliverers to complete a form upon dropping off ballots could burden the offices during a busy election season.
Election Day deadline
In addition to challenging the ballot collection law, the Democrats in trial this week argue that two longstanding voting deadlines in Montana create too big a burden for voters: the 8 p.m. Election Day deadline for most absentee ballots to be received, and the 5 p.m. deadline on the day after Election Day for ballot errors such as a missing signature to be corrected.
On Wednesday, the state called Sanders County Clerk Nichol Scribner who said that a postmark deadline instead of an Election Day deadline for absentee ballots would strain her office’s resources by making her keep temporary staff on board and paid for days after the election to count ballots that continued to arrive.
Scribner also said such a change could impact her ability to meet subsequent deadlines in the days after an election, including deadlines for auditing and canvassing election results.
“And then it kind of domino-effects our deadlines,” Scribner said.
In 19 states, the deadline for absentee ballots is based on the postmark date, and not the date it arrives at the elections office, according to the National Conference of State Legislatures. The Montana Democratic Party and the DSCC advocate for a postmark deadline.