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Judge Blocks Law Preventing Absentee Ballot Collection

A 2020 Montana primary election absentee ballot
Nicky Ouellet
Yellowstone Public Radio
A 2020 Montana primary election absentee ballot

With Montana's primary elections less than two weeks away, a judge temporarily blocked a voter-approved law that restricts collection of absentee ballots.

ACLU of Montana announced W ednesday that the its motion had been granted. The resulting court-issued temporary restraining order affects the Ballot Interference Protection Act. The law was passed by voter referendum in 2018, and limits how many absentee ballots a person can turn in. A single individual can turn in a maximum of six absentee ballots.

“While adhering to COVID guidelines to protect our communities and staff, our organizers can now continue their robust get-out-the-vote and ballot collection efforts on every reservation in Montana knowing that their important work will not be punished,” said Marci McLean, executive director of the group Western Native Voice.

Primary election ballots are due in election offices by June 2.

District Judge Jessica Fehr scheduled a May 29 hearing in Billings on whether to lift the restraining order or to grant a preliminary injunction preventing officials from enforcing the law.

The ACLU, Native American tribes and advocacy groups had sued to block the 2018 law, arguing that it disproportionately harms American Indians who live in rural areas and rely on others to collect and convey their ballots to elections offices or post offices.

Rural Native Americans may not have home mail service and also have difficulty getting to polling sites due to limited hours, unreliable roads, lack of access to a vehicle and limited money to buy gas, the complaint argued.

“Native American voters in the upcoming primary can now use ballot collection to overcome the outrageous distances Native Americans must travel to cast a ballot,” said Jacqueline De Leon, staff attorney with the Native American Rights Fund.

The referendum was placed by the Republican-led legislature in 2017, and 64% of voters approved it in 2018. The initial intent of the law was to give citizens the legal backing to call law enforcement if someone was badgering them for their ballot, said state Sen. Al Olszewski of Kalispell, who sponsored the legislation.

He said the law was in place for two years, and while a challenge was filed in March, the request for the temporary restraining order wasn't filed until May 1 — a week before ballots were mailed.

“I guess the timing of the challenge to me is suspicious of election tampering by judicial fiat,” he said.

He also argued the law doesn't harm tribal members.

“If you can get your ballot in the mail, you can deliver it back in the mail,” said Olszewski, who is seeking the Republican nomination for governor.

In February, election administrators in three counties told a state legislative committee the law was frustrating electors and suppressing votes. They also said it is easily bypassed because people could collect absentee ballots and mail them rather than dropping them off.

The plaintiffs had argued the law did not make it clear that groups could collect ballots and mail them without legal repercussions.

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