A four-year-old battle over ballot collection in Montana is about to get fresh life, as Republicans take another shot at passing a law similar to one that got thrown out by a pair of state district judges last year.
House Bill 406, scheduled for its first hearing Tuesday, proposes changes to the Ballot Interference Protection Act (BIPA), which was passed overwhelmingly by Montana voters in a 2018 ballot referendum. It placed a variety of restrictions on the practice of collecting and turning in other voters’ mail-in or absentee ballots.
BIPA restricted ballot collection to family members, caregivers, household members and acquaintances, while limiting them to dropping off no more than six ballots. It also instated fines of up to $500 for each unlawfully collected ballot.
In a pair of lawsuits last year, however, state district judges ruled that the law placed unconstitutional burdens on people’s rights to vote.
In his September 2020 ruling, Billings District Judge Donald Harris wrote that the law disproportionately burdens poor and elderly people, rural Native Americans, students and those “whose work and family care responsibilities significantly limit their ability to return their absentee ballot on their own.”
His finding followed one earlier the same week by Billings District Judge Jessical Fehr, who also determined the law was unconstitutional in a case brought by Native American groups in the state.
HB 406, sponsored by Republican Rep. Mark Noland, of Bigfork, would remove the six-ballot limit, while adding new restrictions for people who submit other voters’ ballots.
Ballot collection would again be restricted to family members, household members and caregivers, while the “acquaintances” category would specifically mean Montana residents who have registered with the county.
Regardless of their relationship to the voter, anyone delivering another person's ballot would have to furnish the voters’ contact information, the date they received the ballot and signed form from the voter giving the person permission to deliver their ballot.
And Noland’s bill also expands on a provision in the original BIPA statute that requires ballot collectors to sign a registry that includes their personal information and relationship to the voter. Under HB 406, that information would be plugged into a registry maintained by the secretary of state's office, which would be required to provide it to the public on request.
In defending the original law, then-Attorney General Tim Fox, a Republican, argued that "ballot harvesting" is a "large source of potential voter fraud." While he didn't provide any evidence of fraud related to the practice, his proposed findings of fact correctly noted that isolated instances have occurred elsewhere in the U.S.
Sam Forstag, a lobbyist for the ACLU, said it’s unclear how Noland’s bill would remedy the concerns raised by the judges in the two successful challenges to BIPA, which he called “remarkably similar.”
“Whatever the sponsor’s intentions are with this bill, I think the clear impact of it is it will suppress folks’ ability to vote and access the ballot box,” Forstag said, adding, “This is BIPA 2.0 with a single concession, and that concession was not key to the numerous constitutional issues that led the court to strike down BIPA.”
Noland didn’t return multiple voice mails left on his personal phone asking about the bill. HB 406 is one of 15 bills scheduled to be heard by the House Judiciary Committee Tuesday.
As an elections bill, it would typically have been assigned to the State Administration Committee, but House Speaker Rep. Wylie Galt, R-Martinsdale, said during a Monday press conference that it was assigned based on its proximity to the recent court case involving the state Attorney General’s office.
“That was the one that is in court right now, so with a pending lawsuit we thought Judiciary might be a little better with that option,” Galt said.
Still, it isn’t the only elections-related bill to wind up in the overloaded Judiciary Committee, which also heard 20 bills on Monday. Aside from those dealing with judicial system elections, House leadership also sent that committee a bill sponsored by Democratic Rep. Kelly Kortum, which sought to combine the terms “absentee ballot” and “mail-in ballot” under a single definition in state law.
The Bozeman lawmaker described his bill as a relatively innocuous measure intended to clear up confusion among voters who think they need an excuse to request an absentee ballot. That isn’t the case in Montana, where many voters elect to vote by mail simply due to their distance from the polls.
But because of the large number of instances where the term appears in state law, his bill spanned 58 pages, which he said he had been working with the House State Administration Committee to explain.
Kortum ultimately decided to withdraw the bill.
“I was just ready to present it to the people that had been learning it for a month, and it got turfed to a different committee,” Kortum said in an interview. “Expect to see it again in two years, if the voters give me another shot.”