The Second Fight for Ballot Collection in Montana

"CASE WATCH Driscoll v. Stapleton" and other case-specific text, including the file number and court name, with a blue-tinted gavel

Community ballot collection is an important tool for expanding voting rights access across the country, so, naturally, Republicans vehemently oppose it. For years, organizations focused on get out the vote (GOTV) efforts have provided convenient drop-off locations and door-to-door ballot return assistance for absentee ballots to support communities with limited access to the post office. This is ballot collection, and it is a necessary voting option for millions of Native American, rural, and disabled voters, and many others across the country. In 2018, Montana banned this practice and Democrats sued in the case Driscoll v. Stapleton. Despite a court striking down the ban in 2020, Republicans once again tried to block this critical form of voter assistance in 2021.

How did we get here?

In March of last year—before we could predict just how vital voting by mail would be in November—the DSCC, Montana Democratic Party and its Chair, Robyn Driscoll, challenged a 2018 legislative referendum that banned community ballot collection. The burdensome restriction limited who could return a voter’s absentee ballot to an election official, postal worker, family member, household member, caregiver or “acquaintance” of the voter. The ban further restricted ballot collection by limiting the amount of absentee ballots to only six per person assisting and requiring those delivering ballots to sign a registry. Anyone who violated this ban faced a steep consequence: a $500 fine for each ballot collected.

Ahead of Montana’s June primary election, the district court granted the plaintiffs’ motion for preliminary injunction, which stopped Montana from enforcing the ballot collection law while litigation continued. The court found that the ballot collection ban “significantly suppress[ed] voter turnout by disproportionately burdening voters who are Native American, elderly, disabled, poor, parents working low-wage jobs, college students, first-time voters, and voters who have historically relied on GOTV and ballot collection services.” 

Following a trial in September, the district court again ruled in favor of the plaintiffs, declaring the ballot collection ban unconstitutional and enjoining the ballot receipt deadline for the November election. Montana filed an emergency motion to stay the lower court’s injunction in the state Supreme Court.

But the Supreme Court affirmed the lower court’s decision, and the ballot collection ban was again struck down. This allowed thousands of voters in Montana with limited access to the post office or concerns about COVID-19 the ability to rely on their community to submit their signed and sealed absentee ballots. 

After the election, the state dropped their appeal of the ballot collection decision, ending the case. But Republicans in Montana continued their fight to restrict vote by mail options. In February, Republicans attempted to resurrect the ban on ballot collection with HB 406—a suppressive voting bill that aimed to eliminate organized community ballot collection in Montana. Fortunately, the bill failed a key second Senate vote this past Wednesday, effectively killing the bill. While Montana Republicans’ efforts failed this time, it’s important to understand what they set out to achieve…

Although HB 406 sought to remove the six-ballot limit on what it deemed to be permissible ballot collection, it again restricted permissible ballot collection to family members, household members, caregivers and acquaintances of the voter. If passed, HB 406 would have specifically burdened voters, collectors, and election administrators with additional registration and reporting requirements—beyond those included in the original ballot collection ban. Significantly, the bill required both voters and ballot collectors to sign a registry form revealing personal information that could be made public. HB 406 was met with significant pushback from voting rights groups and advocates, as well as local and county election administrators, who feared the legislation would burden counties with implementation costs of almost $500,000 before the spring elections. 

What’s at stake?

Ballot collection bans are systematic disenfranchisement dressed up by Republicans as fraud prevention. Again and again, Republicans insist that “ballot harvesting” is a source of voter fraud, but never provide any evidence of such occurrences. As the district court wrote in their decision, “It is undisputed that there has not been a single instance in Montana of interference, intimidation, tampering, or delay by organized ballot collection services. Nor has there been a single instance of ballot collection fraud in Montana.” In reality, ballot collection bans heavily burden the most vulnerable voters who rely on GOTV efforts and community organizations to get their ballot submitted in time to count. 

As the district court explained in their order striking down the ballot collection ban, the law “makes it more difficult for disabled voters in institutions or group homes, for the elderly in assisted living facilities, for college students, for Native Americans, for large families and households, for first-time voters, and for those working multiple low-wage jobs to vote because [the law] eliminates the organized ballot collection services upon which these voters once relied.”

It’s clear that Republicans in Montana are attempting to hold on to power—not through connecting with more voters, but by suppressing voters who disagree with them. Although HB 406 failed to pass, Republicans have shown a sincere interest in ending ballot collection in Montana for good. If a Supreme Court ruling did not discourage their efforts, one bill’s failing certainly will not. Progressive groups have sworn to challenge any attack on the practice in court if necessary. As always, we will be watching.