Critics of Montana's voter laws look forward to making changes

As Montanans surge to the polls today, some legislators are already working on changing state laws that say who, how and when future voters can register or cast their ballots.

Rep. Ted Washburn, R-Bozeman, says he plans to propose bills in the 2013 Legislature that would eliminate same-day voter registration, stiffen voter identification laws, and require a longer period of residency before a citizen can vote.

Voters line up outside the Missoula Election Center at the Missoula Fairgrounds on Tuesday morning to register to vote, change voting information or drop off absentee ballots. (Photo by Brianna Loper | UM School of Journalism)

Those ideas are part of a national trend. Lawmakers have introduced such bills in 34 states and passed them in Minnesota, New Hampshire, Pennsylvania and Virginia.

Washburn introduced a bill in 2011 to require a state–issued photo ID for registration and identification at the polls. The bill passed the Legislature, but Gov. Brian Schweitzer vetoed it. Washburn plans to resurrect that bill next year.

Conservative lawmakers have promoted voter ID laws for more than a decade. Since 2001, almost 1,000 voter ID bills have been introduced in 46 states. Some of those laws drew national attention this year for their possible effect on voter turnout in close races. Much of this legislation is based on "model bills" provided to lawmakers by the conservative American Legislative Exchange Council, which argues that such laws prevent voter fraud. Liberal-leaning groups say these laws are designed to suppress voting among minorities, young people and the poor – voters who tend to vote Democratic.

Washburn, who is running unopposed for re-election in House District 69, says his bills are homespun. "I'm one who believes that Montana should deal with Montana issues," he says.

Constitutional questions

Regardless of where they come from, the ideas are controversial. Two of Washburn's voter registration bills would require that potential voters prove they pay taxes, an idea critics say is unconstitutional.

Washburn says he worries that college students and others who live transient lifestyles are voting in Montana without being official residents. Montana voters should be people "who actually live here, who pay taxes here," he adds.

While Montanans who are official residents of other states do pay local taxes indirectly through their rents and by shopping at businesses that pay property taxes, that's not enough for Washburn.

Another of Washburn's bills would require that a potential voter obtain a Montana driver's license, or other state-issued ID, either 60 days or 6 months prior to registering to vote. He hasn't yet nailed down the exact timeframe.

For voters who own cars, their vehicles would have to be registered in Montana, Washburn says, "because your payment (of the registration fee) is a tax." Vehicle registration can cost well over $200 for a car or truck that is newer than five years old. Washburn acknowledges that it wouldn't always be feasible to track down unregistered vehicles and force owners to pay up. "We probably wouldn't check" to see if people have cars registered in other states, he adds.

Although none of his proposals explicitly require that voters be taxpayers, critics such as Rep. Bryce Bennett, D-Missoula, argue that implication is clear, which means they're sure to be challenged in court.

The U.S. Constitution's 24th Amendment abolished poll taxes or the payment of any form of tax as requirement to vote. Taxes were infamously used to keep poor black citizens from voting in the post-Civil-War South.

"Asking somebody to go out and purchase an ID that they wouldn't need for their day-to-day lives is fundamentally a poll tax," Bennett says.

Pennsylvania initially sidestepped this issue by offering free ID cards that can only be used for voting.

Voter fraud is rare

Constitutional questions aside, Bennett and others contend that bills like Washburn's are targeting a problem – voter fraud – that doesn't exist in Montana. All such efforts really do is discourage people from voting, he says.

"We should be trying to make voting more accessible rather than less," says Bennett, who is considering proposing online voter registration next session.

Secretary of State Linda McCulloch, a Democrat whose office oversees elections, confirms that there have been no documented cases of voter fraud in Montana. But that doesn't quiet Washburn's concerns.

"There's no way for a state to check if you're registered in another state," he says. "So theoretically, you could vote in at least two states in a presidential election."

Washburn concedes that even his bills wouldn't fix that. "They will never stop people from voting in two states," he says. "But at least they'll have to show (photo) ID here in Montana."

Despite the offer of free ID for voters, Pennsylvania's Supreme Court delayed enforcement of that state's new ID law until next year because justices worried the law could exclude up to 1 million legitimate voters, or 18 percent, who do not have an acceptable form of ID.

Forward Montana, a progressive group that focuses on voting rights issues and getting young voters registered, says Washburn's bills could have the same effect.

"When you have no basis for changing a law except excluding people from voting, in our books that's pretty anti-democratic," says Andrea Marcoccio, Forward Montana's CEO. Washburn says that photo IDs are needed for so many other activities that it can't be considered burdensome to require them for voting.

But his argument has not passed muster in other states, including Wisconsin and Texas, where the courts have recently struck down voter ID laws.

Montana's ID law

"Montana has a voter ID law," Marcoccio says, "You have to bring some form of ID to vote. The question is, should you limit it to one form and why?"

Montana has what is called a "non-strict, non-photo" ID requirement.

"Non-photo" means that in addition to a driver's license, state-issued photo ID and tribal ID – the only forms that Washburn's bill would allow – current Montana voters can show a school district or college photo ID, a current utility bill with their address, a paycheck, a bank statement or another government document showing their name and current address. As long as the address on the document matches the name in the voter registration log, the person is allowed to vote.

"Non-strict" means that voters who do not show sufficient ID can sign the voting precinct's register and vote a provisional ballot. Provisional ballots are checked later to ensure that the voters were indeed registered.

Washburn says that the process of checking provisional ballots causes too much of a delay for election officials.

To ease the Election Day stress in county election offices, Washburn also is proposing a bill to eliminate same-day registration. Montana's law that allows voters to register to vote up to and on Election Day was enacted in 2005.

"Yes, it would make election day smoother," says Missoula Clerk and Recorder and Treasurer Vickie Zeier, a Democrat. "But I think if you're prepared for it it's not that big of a deal."

Zeier says the only difficulty in dealing with same-day registrants is predicting how many people will show up. "The bonus," Zeier adds, "is you never have to turn someone away who wants to vote."

Presidential election years bring high numbers of new registrants on Election Day. In 2008, Missoula County registered about 1,300 voters on Election Day, the highest number of any county in Montana, according to Zeier.

That year, Missoula County employed seven clerks to deal with those registrations. This year, she says, there will be 12.

"We're prepared for high numbers," Zeier says.

Marcoccio says same-day registration is an important option for people who move around a lot and sometimes don't have an opportunity to register in advance at their current address.

"Just because folks are transient in their lifestyles doesn't mean they shouldn't have the right to vote," she says.