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2nd trial begins in challenge to Montana ballot collection and deadline laws

2nd trial begins in challenge to Montana ballot collection and deadline laws

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Ballot lawsuit

Attorneys for the Secretary of State and the Democrat party gather in District Court Judge Donald Harris' court for a lawsuit over ballot restrictions on Monday.

A group of Democrats challenging restrictions on ballot collection practices ahead of the November election began making their case in Yellowstone County District Court on Monday.

The bench trial in front of Judge Donald Harris is the second in back-to-back trials over how and when ballots can be returned in Montana’s general election this fall.

A ruling in the first trial is still pending.

At stake is whether individuals and civic and advocacy groups can once again turn in completed ballots to elections offices without limits for voters who can’t or won’t make it to the polls.

Plaintiffs say the practice is crucial to ensuring everyone can vote.

A 2018 voter referendum passed the Ballot Interference Protection Act, which laid out various restrictions to the practice. For example, no one can turn in more than six ballots from other voters per election. Violations are punishable by a $500 fine for each ballot over the limit.

In addition, the ballot collector must be a caregiver, family member, household member or acquaintance of the voter.

The law defines acquaintance as “an individual known by the voter,” which the Democrats say is too vague. In get-out-the-vote drives on a college campus, for instance, volunteers staffing the tables where completed ballots can be dropped often aren’t acquainted with all the voters utilizing the service.

The case was brought against Secretary of State Corey Stapleton by the Montana Democratic Party and its chair, Robyn Driscoll, along with the Democratic Senatorial Campaign Committee.

Many of the claims are parallel to those in a lawsuit tried last week one floor down in the Yellowstone County courthouse in front of Judge Jessica Fehr.

The plaintiffs in that case are Native American advocacy organizations and five tribal governments who argue the restrictions on ballot collection disproportionately affect rural Native voters due to geographic isolation, unreliable mail service, lack of transportation and other factors. A ruling is expected in the coming weeks.

While both cases challenge the same ballot collection restrictions, the Democrats’ case goes farther.

The Democrats argue that a longstanding deadline of 8 p.m. on Election Day for most absentee ballots to be received and a deadline of 5 p.m. on the day after the election for voter errors like a forgotten signature to be fixed both violate constitutional rights.

The Democrats argue that a disruption in mail service could result in ballots not being counted even when the voter mailed the ballot in a timely fashion.

In 2016, there were 18,120 ballots that arrived on Election Day, according to filings by the Democrats. In 2018, there were 17,901. In the June primary, there were 21,655.

The Democrats also say not all voters actually receive notice that their ballot needs to be fixed in time to meet the deadline.

In the June primary, the state saw a record number of ballots rejected as late or for signature problems, according to court briefs filed by the Democrats. The primary was the state's first mail-ballot primary election. It was conducted by mail due to public health concerns amid the COVID-19 pandemic. 

Between 2006 and 2016, Montana rejected more than 17,000 ballots because they were late.

The state argues the deadlines are necessary to ensure the public trusts the accuracy and timeliness of Montana election results. Any changes to the deadlines should come from the Legislature and not the courts, the state argues.

Most states have some restrictions on ballot collection, while 21 states do not.

Thirty-four states have a ballot receipt deadline of Election Day or earlier. 

The lawsuits over Montana’s fall election are part of a wave of voter litigation underway across the country.

One of the law firms representing the Democrats in court this week, Perkins Coie LLP, is part of a team of hundreds of attorneys engaged in state-level lawsuits on behalf of Democrats over rules for voting this November, The New York Times reported.

Both national political parties have dived in on legal battles in Montana over the election this fall. The Democrats are engaged in the case currently on trial. The Republicans and the reelection campaign for President Donald Trump in a case in federal court over Gov. Steve Bullock’s directive allowing counties to conduct the fall election by mail.

Anthony Johnstone, law professor at the University of Montana, said the national parties’ involvement is a sign of how invested they are in the outcome of federal races in Montana.

“These election law cases are on very tight deadlines and often require review of lots of evidence and witnesses. And in short, they can be very expensive,” Johnstone said. “And so typically, you have to care a lot about the outcome of these cases to mobilize around this litigation.”

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