Lawsuit brought by the Montana Democratic Party challenging the passage of three voter suppression laws: House Bill 176 eliminates Election Day voter registration; Senate Bill 169 narrows eligible voter IDs, particularly limiting the use of student IDs; and House Bill 530 bans certain types of ballot assistance. The case claims that the laws violate the Montana Constitution and asks the court to preliminarily and permanently stop the Montana secretary of state from enforcing the laws. Two other cases were consolidated with this one: Western Native Voice v. Jacobsen and Montana Youth Action v. Jacobsen.
The court granted a preliminary injunction as to all four laws, blocking them as litigation continues. After the trial court declined to pause the preliminary injunction while the state appeals the decision, the state went to the Montana Supreme Court and asked the court to reinstate two of the blocked laws (H.B. 176 and S.B. 169) for the state’s spring primaries while an appeal is litigated; the court granted their request. The other previously blocked law, H.B. 530, remains blocked for upcoming elections. On July 27, the court permanently blocked H.B. 506, stating that the law is unconstitutional. In the same order, the court rejected the Montana secretary of state’s motion for summary judgment on all other claims. There was a trial on H.B. 176, S.B. 169 and H.B. 530 from Aug. 15-24.
On Sept. 21, the Montana Supreme Court affirmed the preliminary injunction decision leaving H.B. 176 and S.B. 169 temporarily blocked. On Sept. 30, the trial court permanently blocked H.B. 176, S.B. 169 and H.B. 530. On Nov. 22, the secretary of state appealed the trial court’s order permanently blocking H.B. 176, S.B. 169 and H.B. 530.
In the Courtroom
A trial was held from Aug. 15-25. You can read below for a daily summary of updates from local news sources and individuals covering the trial.
According to a Twitter thread by Forward Montana, on Aug. 15, the court heard opening arguments from both sides and also heard testimony from several experts and a witness, all from the plaintiffs’ side. Dan McCool, an expert on Native Americans voting rights, explained his research, specifically as it pertains to Montana. McCool discussed the negative impacts H.B. 530 and H.B. 176 will have on Native American voting rights. McCool discussed the “cost of voting,” which analyzes factors such as “transportation, income, housing, etc.” and how the cost of voting is much higher for Native Americans. Mitch Bohn, who has spina bifida, testified that H.B. 530’s limit on ballot collection could harm the disabled community. Dr. Ryan Weichelt, a professor who focuses on political geography, testified that, in Montana, Native American populations have longer distances to travel, face barriers to transportation and the cost of voting increases for this community if they do not have Election Day registration or ballot collection.
On day two of the trial, the court heard testimony from Dr. Ryan Wichelt, Dr. Alex Street, Thomas Bogle and Dawn Gray. Dr. Weichelt testified that Native American voters have to travel further than white voters to cast a ballot. Dr. Street, a professor of political science, testified for five hours. You can read his report here. He testified that when the costs of voting increase, turnout decreases; voting is a habit and Native Americans living on reservations are more reliant on Election Day registration than other voters in the state. He also asserted that there is no evidence supporting the claim that eliminating ballot collection would improve trust in the electoral process. Bogle, a Montana resident, testified that he did not receive an absentee ballot before the election despite registering prior to Election Day. Gray, a member of the Blackfeet tribe, testified that “poverty; lack of housing, transportation, and internet; limited mail service; and poorly maintained roads paired with dangerous weather conditions” make it more difficult for those living on the Blackfeet reservation to vote.
According to a Twitter thread by Forward Montana, the court heard testimony from Kiersten Iwai, Sarah Denson, Councilman Lane Spotted Elk, Kendra Miller and Ronnie Jo Horse. Denson, a Montana State University graduate, testified that she was unable to vote in the 2021 municipal election because she was registered in Gallatin County when she needed to be registered in Custer County. Denson attempted to update her registration prior to Election Day, but only learned her registration was not processed when she showed up to vote. Unfortunately, due to H.B. 176, she could not update her registration on Election Day. Iwai, the executive director of Forward Montana, testified that Forward Montana has registered over 45,000 voters since 2011. She discussed the challenges facing young voters that are now exacerbated by the removal of student IDs as an acceptable form of standalone identification and the removal of Election Day registration. Spotted Elk, a member of the Tribal Council of the Northern Cheyenne Tribe, testified about the impact that poverty has on tribal members’ voting access and how houselessness impacts mail access. Spotted Elk testified that ballot collection is crucial and that “tribal membership prefer ballot collection” to satellite voting. Miller, a data analyst, testified that, for the state’s November 2021 municipal election, at least 268 voters attempted to register to vote on Election Day or after 12 p.m. the day prior to Election Day — a time frame eliminated by H.B. 176. Horse, the executive director of Western Native Voice (a plaintiff in the case), testified that 25% of the organization’s budget is for get-out-the-vote efforts — which include rides to the polls, ballot collection and canvassing — and noted that ballot collection is “crucial” for Western Native Voice’s work.
According to a Twitter thread by Forward Montana, on Thursday the court heard testimony from Ronnie Jo Horse, Bradley Seaman and Isaac Nehring. The state first cross examined Horse following her testimony on Wednesday. Then the court heard testimony from Seaman, a Missoula County elections administrator. Seaman testified that Election Day registration is safe and secure and noted that prior to H.B. 176, 1,000 voters in Missoula used Election Day registration to register and vote in 2020. He also noted that the laws challenged in the lawsuit will not improve Missoula election administration. Nehring, the founder of Montana Youth Action (one of the plaintiffs in this lawsuit), testified that Election Day registration is important “when issues arise with voter registration” before Election Day and highlighted the obstacles young voters face.
According to a Twitter thread by Forward Montana, on Friday the court heard testimony from Shawn Reagor and Jacob Hopkins. Reagor, the director of equality and economic justice at Montana Human Rights, discussed the impact S.B. 169 has on transgender Montanans. Reagor noted that obtaining a new student ID is easier for transgender college students than obtaining the types of gender-affirming documentation necessary to vote under S.B. 169. Hopkins, the data director of the Montana Democratic Party, testified about the party’s get-out-the-vote efforts and discussed how Election Day registration is crucial for younger voters. Hopkins was cross examined by the defendant’s lawyers and court then adjourned for the week.
According to a Twitter thread by Forward Montana, on Monday the court heard testimony from Dr. Ken Mayer, Bernadette Franks-Ongoy and Regina Plettenberg. Dr. Mayer is a professor of political science in Wisconsin who researches voting behavior, election administration and election law. Dr. Mayer explained how, when the cost of voting (meaning obstacles that make it harder to vote, which can include time, transportation, money, etc.) increases, voter turnout decreases. He testified that the challenge laws “increase the cost of voting and will result in otherwise eligible voters being unable to vote.” Dr. Mayer provided data from his research which showed that 7% of all registered voters in Montana have relied on Election Day registration at some point in the last 13 years and voters ages 18-24 make up 31.2% of voters who register on Election Day since 2008. Regarding S.B. 169, he stated the law’s restriction on acceptable voter IDs “doesn’t do anything but make it more difficult for otherwise eligible students to vote.” Franks-Ongoy testified about the impact these laws will have on voters with disabilities, stating that “I think it’s pretty oppressive how these laws prohibit people with disabilities” from voting. Plettenberg, a Ravalli County clerk and recorder, testified that the administrators haven’t previously had problems with election security, concluding that it’s “hard to fix a problem we’re not seeing.”
According to a Twitter thread by Forward Montana, on Tuesday the court heard testimony from the plaintiffs’ final witness, Rep. Geraldine Custer (R), who has served in the Montana House of Representatives since 2015 and represents Forsyth, Montana. Before getting elected to the Montana Legislature in 2014, Custer served as the Rosebud County clerk and recorder for 36 years, where she oversaw the voting process firsthand. Custer took the stand and outlined the numerous safeguards that are in place to ensure that Montana elections are highly secure and unsusceptible to fraud. Custer explained how she opposed H.B. 176’s elimination of Election Day registration because Montanans had voted to retain Election Day registration in 2014. She testified that she voted against H.B. 176 because Election Day registration “doesn’t impact election security. It never has…[I]t doesn’t lead to errors; we don’t have any.” Custer then shifted to discussing S.B. 169, which removed student IDs as a possible voting ID option for both voter registration and in-person voting. In regards to S.B. 169, Custer recounted how she was part of an effort by a group of legislators to add an amendment to S.B. 169 to keep student IDs on the list of acceptable voter IDs, but the amendment failed. She stated that, among her Republican colleagues in the Legislature, “[t]he general feeling…is that college students tend to be liberal, and so that’s the concern with them voting.”
After Custer’s testimony concluded, the defendants called their first witness, Doug Ellis, a county clerk from Broadwater County. Ellis’ testimony focused on how Election Day registration results in stress and confusion for election officials and diverts their attention from performing other Election Day duties, such as verifying signatures and collecting and counting ballots.
According to a Twitter thread by Forward Montana, on Wednesday the court heard testimony from the defense’s second witness, Rep. Greg Hertz (R), a Republican member of the Montana Senate who voted in favor of the three challenged laws. Hertz testified that, in his opinion, the laws were intended to act as “preventative measures,” despite stating that he did not believe that Montana faces any widespread voter fraud. He testified that while he does believe that Montana has a history of secure and transparent elections, he thinks there is always “room for improvement.” During cross examination, the attorneys for the one set of the plaintiffs pointed out that four times as many people expressed opposition to H.B. 176 — the challenged law that eliminates Election Day registration — than those who supported it. Hertz responded that he did not take this statistic into account when deciding to vote in support of enacting H.B. 176 and acknowledged that H.B. 176 might “hinder Montanans from voting.” During the second round of cross examination, Hertz conceded that H.B. 176 might disenfranchise voters who miss the new voter registration deadline, but added that voters will change their behavior once they comprehend the new law.
Following Hertz, the court heard testimony from another one of the defense’s witnesses, Sean Trende of Ohio, who is a senior elections analyst at the conservative news organization RealClearPolitics. After the plaintiffs objected to Trende’s report and testimony on the basis that he lacked expertise and training around the issues in the case, the judge overruled the objection and allowed the cross examination of Trende to proceed. When asked if he had conducted any research on the challenged laws’ impact on young voters, Native American voters or voters with disabilities, Trende responded that he had not. Regarding H.B. 176 and its elimination of Election Day registration, he asserted that although some studies find a correlation between Election Day registration and voter turnout, it is difficult to draw causal inferences since there is a dearth of controlled experiments available to prove causation. In terms of S.B. 169, which eliminates student IDs as a standalone voter ID option, Trende said that there are not enough studies on this “minor change,” therefore “leav[ing] us without a warrant for believing this will affect someone’s ability to vote.”
Finally, the court heard from Bret Rutherford, an election administrator in Yellowstone County who has served in the role since 2010. Rutherford walked the court through his role in election administration overseeing elections from “top to bottom” and answered in the affirmative when asked whether he thinks high turnout is good for democracy.
According to a Twitter thread by Forward Montana, on the final day of trial, the court heard testimony from defendant Montana Secretary of State Cristi Jacobsen’s (R) chief legal counsel, Austin James. When asked about how the secretary of state’s office notified voters of the new voter registration deadline in light of H.B. 176’s elimination of Election Day registration, James discussed the “efforts [that] were made” to contact active and inactive voters and inform them about changes to the law. Subsequently, James was asked whether the secretary of state’s office was “aware” of the results of a 2014 referendum in which Montana voters rejected a measure that would have eliminated Election Day registration “at the time she decided to make ending Election Day registration a priority during the 2021 legislative session, correct.” To this question, James answered “Yes, we knew.” In addition, when asked whether the secretary’s office undertook any analysis to determine how H.B. 176 might affect turnout “among particular subgroups of Montanans,” James responded that “we didn’t do any analysis before the [legislative] session.” The discussion then pivoted to the topic of student IDs, during which James admitted that he was not aware of how student IDs have an adverse outcome on Montana’s elections.
A decision will be announced in the coming weeks.
Case Documents (Trial court)
Case Documents (MT supreme court)