Three Trial Takeaways: Montana’s Voter Suppression Laws

By Mac Brower

A typewriter with a post-trial brief from Montana's voter suppression case and excerpts from the document in the background.

In August, Montana district court judge Michael Moses held a trial over three voter suppression laws recently enacted by the Republican governor and Legislature. The three laws in question eliminated Election Day registration (EDR), tightened the state’s voter ID requirement (notably eliminating student IDs from the list of standalone IDs) and banned ballot collection that may endanger the programs run by many civic organizations. Multiple groups challenged the laws for violating the Montana Constitution and burdening the right to vote.

The trial wrapped up on Aug. 25 — you can find updates from the courtroom here. Since the trial ended, both the plaintiffs and the defendant have submitted their proposed findings of fact and conclusions of law — basically, what each side wants the judge to rule based on what happened during the trial. Here, we summarize three takeaways from the trial based on these documents.

1. The three laws clearly raise the “cost” of voting for many Montanans — and that means fewer will end up voting.

During the trial, multiple experts for the plaintiffs testified about the “costs” of voting and how they influence turnout. Dr. Kenneth Mayer, a professor at the University of Wisconsin, outlined the different kinds of costs involved in voting — unexpected changes to the voting process, administrative hurdles, expended time and even actual monetary costs. He testified that as these costs increase, the likelihood that an individual votes decreases. He concluded that all three challenged laws will “increase the cost of voting and will result in otherwise eligible voters not being able to vote” — particularly for young voters who move frequently or lack acceptable IDs.

Similarly, other experts demonstrated that Native American voters in Montana have particularly high voting costs due to the long distance between reservations and election offices, lack of reliable mail service and entrenched socioeconomic disparities. As a result, Native American voters rely on EDR and ballot collection more than other Montana voters to mitigate these costs. The laws eliminating both of these voting practices, according to Dr. Alex Street, “are likely to have a differential negative impact on voter registration and voting for Native Americans living on Indian Reservations in Montana.” The laws increase the costs of voting for Native American voters, and as a result they are less likely to turn out.

The findings of the plaintiffs’ experts were confirmed by the testimony of multiple Montana voters:

  • Sarah Denson tried to vote in the November 2021 elections after updating her registration to her new home in Bozeman. When she arrived to vote on Election Day, however, she discovered that her registration was still affiliated with her old address. Since she could not use EDR to update her registration, voting now required her to drive four hours to her old address — a cost that Denson testified could have resulted in her losing her job for taking the time off. Without EDR, she was prevented from voting.
  • Lane Spotted Elk, a tribal council member of the Northern Cheyenne Tribe, highlighted the many barriers Native American voters face in accessing the franchise — including lacking vehicular transportation and access to home mail service — and the importance of ballot collection programs for them.
  • Shawn Reagor testified how the new voter ID rules will impact young voters, especially transgender voters. For these voters, obtaining a gender-affirming student ID is much easier than obtaining a gender-affirming driver’s license or passport. However, under one of the state’s new laws, student IDs are no longer accepted as standalone identification and transgender voters who only have student IDs will have to also produce a lease, pay stub or bank statement with their name and address in order to vote — among the most difficult types of identification a transgender individual can get.

2. Republican lawmakers ignored the evidence about the impact of the laws and the wishes of Montanans.

Throughout the legislative process, Republican lawmakers in the Montana Legislature ignored testimony against the laws offered by election officials and everyday Montanans. When the House’s State Administrative Committee held a hearing on the ban on EDR, most members of the public present at the hearing opposed the bill. One speaker highlighted that 57% of Montanans rejected eliminating EDR in a 2014 referendum. Others pointed to the disparate impact that eliminating EDR would have on Native American voters and young voters. Only a single election administrator spoke in favor of the bill — and he admitted during the trial that he only did so because he was asked by the Montana secretary of state.

Similarly, the Legislature enacted the ballot collection ban knowing full well how important ballot collection programs are to Native American voters. That’s because the Legislature previously tried to ban ballot collection through the Ballot Interference Prevention Act (BIPA). BIPA was found to violate the Montana Constitution for “burden[ing] the right to vote” for Native American voters and others living in rural tribal communities. When the Legislature tried to revive a ballot collection ban after BIPA was blocked, lawmakers did not even try to address these issues. State Sen. Greg Hertz (R) admitted during the trial that he did not consider the impact on Native American voters or try to understand why the amendment was ruled unconstitutional, but still supported the new ballot collection ban and advocated for its passage.

Lawmakers also knew the impact that demoting student IDs would have on young Montanans. According to Hertz, the secretary of state viewed changing student IDs from a primary to a secondary form of identification for voting as a pressing need for the 2021 legislative session. An amended version of the bill included Montana University System IDs in the standalone category. However, the Speaker of the House Wylie Galt (R) then brought an amendment to the state House floor to demote student IDs again — a “highly unusual” move according to state Rep. Geraldine Custer (R). Custer stated during the trial that she was “appalled” by the amendment and noted that it was possible to craft a photo ID law “without discriminating against anybody.” To her, it was clear that the way the law treated student IDs was discrimination. But Galt didn’t care, remarking that if you’re a student “and you don’t have a registration, a bank statement, or a W-2, it makes me kind of wonder why you’re voting in this election anyway.”

3. Montana failed to convincingly rebut the plaintiffs’ arguments.

In contrast to the plaintiffs, the Montana Secretary of State Christi Jacobsen (R), the defendant in the case, failed to mount a very strong defense of the laws. The secretary of state’s representative, Austin James, often gave evasive answers that prompted the judge to ask him to answer “yes” or “no” to questions. James conceded that the secretary of state has no evidence of fraud in Montana elections, and that practices banned by the laws decrease confidence in the security and legitimacy of Montana elections. Similarly, the defendant’s expert witness Sean Trende agreed with the plaintiffs’ experts that “there is little doubt that there’s a relationship between the cost of voting and the decision to turn out” and these costs “can impact those who are already marginalized.” Unlike the plaintiffs’ experts, Trende did not perform any analysis on the specific circumstances of Montana. He also agreed that voter fraud is not a problem in Montana.

The secretary of state also failed to offer much justification for any of the laws.

  • In addition to admitting there is no voter fraud in Montana, Jacobsen did not offer substantial evidence that the elimination of EDR is required to relieve election administrators. In fact, Montana election administrators testified that ending EDR is “not…helpful administratively” and there are other things the Legislature could do instead, like providing “better training, better equipment” or additional staff. 
  • The secretary also argued that eliminating EDR would lead to shorter lines on Election Day. This is also not supported by evidence — as EDR grew in popularity, wait times at the polls in Montana have actually decreased and administrators testified that EDR doesn’t affect lines at most polling places, where the vast majority of in-person voting occurs.
  • Finally, Jacobson claimed that changing photo ID requirements ensured voter eligibility and conformity with residence requirements. However, this is clearly false, as some of the standalone IDs approved by the law, like a driver’s license or concealed carry ID, don’t prove someone is eligible to vote or “prove that that person is eligible to vote at the address where they are registered.”

The three laws at the center of this Montana case are not the first Republican voter suppression laws to go to trial, and they won’t be the last. But a striking pattern is already emerging — when pressed to justify their new restrictive laws, Republicans are coming up short. Even if these laws are ultimately upheld, the evidence for the widespread voter fraud Republicans point to just isn’t out there.

As we await the ruling from the judge, read up on all the case documents here.