Montana's nine-day election laws trial concludes

Alex Sakariassen

Montana Free Press

Throughout the past two weeks, a steady stream of witnesses have taken the stand in Yellowstone County District Court. Each spoke to the perceived pros or cons of three election administration laws passed in 2021 by the Montana Legislature — testimony that collectively addressed broader concerns about voter access and election security that lie at the heart of the case.

Thursday marked the close of those proceedings, leaving Judge Michael Moses to review roughly 60 hours of testimony and hundreds of pages of exhibits and expert reports. His ruling, which Moses said he’ll try to reach as quickly as possible, will decide whether Montanans can register to vote on Election Day, what forms of photo identification they can use to vote, and whether people collecting ballots on behalf of other voters can be paid for their efforts. With the state’s November general election just over two months away, those decisions will be hotly anticipated not just for plaintiffs and the lawsuit’s sole defendant, Republican Secretary of State Christi Jacobsen, but for Montanans from all walks of life.

The scope of the arguments is substantial. Attorneys for the plaintiffs in the consolidated case, including the Montana Democratic Party, four tribal nations and a collection of youth and Indigenous voting advocacy nonprofits, brought experts and individual witnesses to provide key details in arguing that the new laws are burdensome to voters. Jacobsen’s attorneys likewise leaned on expert testimony and personal accounts to bolster their case that the laws are necessary to guard against voter fraud and improve voter confidence.

As those high-level arguments came into sharper focus, attorneys also shook loose some compelling insights into the origins of the new laws, the extent of the evidence underpinning each side’s assertions about their impacts, and how the high-profile case is tied to unsupported claims that the 2020 presidential election was stolen from Donald Trump.

The motivations

The trial’s first week focused heavily on individual voters’ personal experiences with ballot access and the new laws. But as the defense began calling its witnesses this week, conversation in the courtroom shifted to the official process that brought the laws into being.

During testimony Wednesday, Sen. Greg Hertz, R-Polson, shared the concerns that fueled his support for revising photo identification requirements for voters. With regard to student IDs, Hertz testified that they offer no proof that a voter actually resides in Montana — an issue he believes is rectified by requiring a secondary form of ID such as a utility bill or government paycheck. On the subject of paid ballot collection, Hertz mentioned that during the legislative session he’d seen several media reports of problems attributed to the practice in other states, and said he believed that any time money is involved “people’s behavior changes.” He also repeatedly referred to the new laws as “preventative measures” designed to improve Montana’s electoral system.

On cross-examination, Hertz responded to rapid-fire questioning about his reasoning in voting for the laws. He said numerous times that he did not recall hearing from constituents in 2021 about fraudulent activity related to Election Day registration or voter identification, and affirmed his view that Montana has historically run safe and secure elections. 

Attorney Matt Gordon, representing the Montana Democratic Party and plaintiff Mitch Bohn, also queried Hertz about how House Bill 530 was altered in the final days of the session. Gordon showed Hertz a copy of an email Hertz received from then-Montana Republican Party Executive Director Spenser Merwin containing language nearly identical to an amendment establishing the bill’s ban on paid ballot collection. Hertz acknowledged he had forwarded that email, received three days prior to the amendment’s introduction, to the amendment’s sponsor, Sen. Steve Fitzpatrick, R-Great Falls.

The process lawmakers used to amend HB 530 also came up Tuesday during the testimony of Rep. Geraldine Custer, R-Forsyth. Custer had supported an earlier draft of the bill that exclusively directed the secretary of state to adopt new rules governing election security. But as the session neared its close in April 2021, HB 530 was among a number of bills that were amended in conference committees — a late-session process that doesn’t include public testimony. Asked by Rylee Sommers-Flanagan, attorney for the case’s youth advocacy plaintiffs, whether lawmakers have a term for such action, Custer said it’s commonly referred to as “hijacking the bills.” Custer acknowledged that she voted for HB 530 as amended, presuming that the provision banning paid ballot collection would be challenged in court on similar grounds as the state’s Ballot Interference Prevention Act, which was struck down in 2020.

“If it happened once, it was probably going to happen again,” Custer said. “I mean, how many times do you have to beat a dead horse before you’re going to see that you just don’t do certain things?”

Custer also said she was part of a bipartisan group of stakeholders who worked to improve Senate Bill 169, the measure revising photo ID requirements for voters, after its introduction. She testified that a resulting rewrite allowed voters to use a student ID as a sole source of identification, and that doing so made sense because many student IDs in Montana are issued by state-governed campuses. When SB 169 was amended again to require secondary documentation alongside student IDs, Custer said, she was “appalled.” She was the sole Republican in the Legislature to vote against the bill.

Testimony Thursday from Austin James, chief legal counsel for the secretary of state’s office, shed additional light on the origins of SB 169 and House Bill 176, which ended Election Day voter registration in Montana. James characterized the bills as “practical solutions” to stressors election administrators had been voicing in Montana “for years.”

“It was what I’d call a known problem,” James said of Election Day registration. “But figuring out the proper way to address it was going to take looking at all the late registration activities and finding a way to resolve the problem while at the same time enhancing elections in a meaningful way.”

Voter ID and Election Day registration were both identified as top legislative priorities for Jacobsen in an email displayed during James’ cross examination. Under questioning from Gordon, James confirmed that both had been among Jacobsen’s campaign promises ahead of the 2020 election, and that Republican control of the Legislature and the governor’s office made a strong case for passing such measures in 2021. Gordon asked James repeatedly whether Jacobsen’s office had conducted any analysis to support the changes or determine what effects they would have on voters. James confirmed that the office had conducted no such analysis. He also acknowledged that Jacobsen’s staff had provided HB 176’s sponsor with a list of talking points for the bill’s first hearing that claimed long lines associated with Election Day registration might deter voters.

“You’ve heard repeated testimony in this case about how the lines for Election Day registration are not at polling places typically, they’re at the county election office, correct?” Gordon asked.

“Yeah,” James replied.

“And if there is a central polling place, the lines for Election Day registration are different than the lines for people who are there to vote regularly, correct?” Gordon continued.

“Yeah, they designate and do the best they can,” James said.

Evidence of impacts

One of the biggest hurdles that attorneys on both sides of the case faced was presenting the court with hard evidence to back their arguments. For the defense, that meant trying to prove the premises of voter fraud and administrative burden the laws were purportedly designed to address. For the plaintiffs, it meant attempting to quantify the laws’ negative impact on voters, particularly voters who are young, disabled or living in Indigenous communities.

The extent to which either side succeeded won’t be clear until Moses issues his ruling, but the defense’s claims regarding voter fraud in Montana were routinely challenged throughout the trial. One 2020 case of attempted fraud in Gallatin County was identified before the individual ever cast a ballot. Another alleged case in Phillips County occurred after the new laws had gone into effect. James was questioned about his effort, as counsel for Jacobsen, to uncover evidence of voter fraud through the Montana Historical Society. Gordon pointed out that the two examples of voter fraud and intimidation James found there dated back more than a century, and the plaintiff’s first expert witness, University of Utah political science professor Daniel McCool, testified that he calculated the national rate of fraudulent voter activity at 0.00006%.

As for administrative burdens, two county election administrators testified for the defense that Election Day registration distracted their offices from other essential Election Day duties, including the processing of absentee ballots. Yellowstone County Election Administrator Bret Rutherford added to that testimony, describing how during the 2012 general election, his staff was processing Election Day registrants for roughly four hours after the polls closed. Rutherford also told the court that the high volume of same-day registrations in November 2008 was a key factor in the county moving its Election Day operations from the courthouse to the Billings MetraPark.

The plaintiffs’ attorneys questioned Rutherford and the other testifying election administrators about whether they had collected any data on the length of lines or wait times experienced by Election Day registrants. All testified that they had not, and none said they could provide evidence that processing those registrants had delayed their reporting of election results. As for the argument that registering voters on Election Day keeps county staff working well after the polls close, Custer, who served as election administrator in Rosebud County for 34 years prior to joining the Legislature, told the court, “I feel for them, but they also signed up for that.”

To back their claims of voter disenfranchisement resulting from HB 176, the plaintiffs consistently cited Election Day registration numbers going back to 2006 as evidence of the practice’s widespread popularity. The defense worked meticulously to poke holes in that historical data, pointing out at several turns that those numbers also reflect voters updating their registration status or switching to new addresses in another precinct within their home county. The latter, as stated by numerous attorneys and witnesses throughout the trial, is still allowed under HB 176.

Last Monday, the conversation briefly turned to the paid ballot collection ban’s implications for disabled voters. Bernadette Franks-Ongoy, executive director of the nonprofit Disability Rights Montana, said her organization has long assisted disabled voters in Montana communities by collecting their ballots and submitting them to county election offices. That service is conducted by members of Disability Rights Montana’s paid staff, she continued, raising questions about whether HB 530’s ban applies.

“I believe there are a lot of people who would not vote without DRM’s assistance,” Franks-Ongoy said, adding that the various steps involved in absentee voting raise multiple barriers for disabled voters in completing and returning their ballots.

Defense attorney Leonard Smith challenged that concern on cross examination, asking Franks-Ongoy if she was aware that HB 530 directed Jacobsen to establish administrative rules further clarifying the law’s scope. Smith’s suggestion appeared to be that Disability Rights Montana’s involvement in the process could help to resolve the organization’s situation.

“Does Disability Rights Montana plan to participate in the administrative rulemaking process for HB 530?” Smith asked.

“Yes,” Franks-Ongoy replied, “we will most likely engage in that process.” 

Over the past year and a half, Montana has seen the rise of a concerted effort to cast doubt on the outcome of the 2020 presidential election. What began as a localized challenge to election results in Missoula County has blossomed into a statewide movement, propelled by a small group of Republican lawmakers who continue to promote theories about security risks and widespread voter fraud routinely debunked by election experts.

Until now, that movement has largely played out separately from the state’s ongoing legal fight over election administration lawsuits. But the trial hit a key turning point Tuesday as Custer, in response to questions from Sommers-Flanagan, spoke directly to the ways in which voter fraud — a key argument driving the push for more stringent election laws — is discussed in Montana.

Custer mentioned allusions to fraudulent activity in the 2020 election nationally and the rise of fringe theories about ballot tabulating machines being susceptible to wireless tampering. She said that someone had sent her information about a film called “2,000 Mules,” which the New York Times described as a repackaging of former President Donald Trump’s baseless claims of how the 2020 election was stolen. Has this trend of questioning the integrity of elections in Montana continued, Sommers-Flanagan asked? Yes, Custer replied, and it doesn’t make sense.

“Not in my wildest dreams,” Custer said. “Especially in Montana, especially in 2020. It was a red wave.”

The trial’s connection to the broader atmosphere of election skepticism came into further clarity Wednesday as Hertz fielded a flurry of questions from the plaintiffs attorneys about his opinion on the security and accuracy of Montana elections. Hertz acknowledged his belief that Montana’s 2020 election was fair and accurate, and said he doesn’t believe the results were fraudulent. He was then asked, given those beliefs, if he recalled signing a letter to legislative leadership in September 2021 requesting the establishment of a special select committee to investigate election integrity. After the plaintiffs presented the court with a copy of that letter including Hertz’s signature, he acknowledged his signature and said the effort was partly spearheaded by Sen. Theresa Manzella, R-Stevensville, a prominent election skeptic.

“Sen. Manzella has repeatedly publicly claimed that the 2020 election was stolen from Trump, correct?” Gordon asked.

“I don’t speak for or follow what every legislator in Montana says,” Hertz replied. “I’d be out of place if I acknowledged that she repeatedly does that.” 

“You are aware, though, that Sen. Manzella has publicly claimed that the 2020 election was stolen from Trump?” Gordon asked.

“At times I’ve heard her say that, yes,” Hertz said.

The issue came up again during James’ cross-examination Thursday, when he was asked by attorney Alex Rate, representing the plaintiff Western Native Voice, about allegations made by Rep. Brad Tschida, R-Missoula, and others of irregularities in Missoula’s 2020 election. Those allegations prompted the Missoula County Republican Central Committee to conduct a review concluding there was “no voter fraud” in 2020.  Rate quoted James’ earlier deposition in which he referred to people pushing such fraud claims as “wingnuts.” 

“You would agree with me that the allegations in Missoula County are part of a conspiracy theory?” Rate asked. 

James agreed, and acknowledged twice that he does not believe the 2020 election was stolen from Trump.

What’s next?

The biggest unanswered question from this month’s proceedings is whether the laws will impact Montana voters this fall. The Montana Supreme Court stayed Moses’ injunction of HB 176 and the challenged section of SB 169 earlier this year, but allowed his freeze on HB 530 to continue. Attorneys on both sides still have several items to address post-trial, and once Moses issues a final ruling on all three laws, the case could still be appealed to the state Supreme Court.

Moses spoke to that uncertainty at the close of the trial Thursday, saying he understands that numerous issues are still “up in the air” regarding the November election. 

“I just don’t know the answer,” Moses said. “All I do know is that I will get my order out as quickly as possible, and I think that’s the best we can do.”