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Trial over the legality of Montana's new voting restrictions ends

Rep. Geraldine Custer (R-Forsyth) takes the stand in Yellowstone County District Court on August 23, 2022, during a trial over Montana's new voting restrictions.
Screen capture from the trial live stream.
Rep. Geraldine Custer (R-Forsyth) takes the stand in Yellowstone County District Court on August 23, 2022, during a trial over Montana's new voting restrictions.

The future of three new Montana election laws is now in the hands of a state judge.

Attorneys recently concluded nine days of arguing over the laws' possible benefits and harms. Yellowstone County District Judge Michael Moses says he plans to issue a decision on whether they meet constitutional muster “as soon as possible.” Montana Public Radio’s Shaylee Ragar joins Freddy Monares to give a rundown of the trial.

Freddy Monares: Shaylee, can you remind us what new election laws we’re talking about?

Shaylee Ragar: Sure, Freddy. We have to back up to the spring of 2021 when these laws passed. Montana’s Republican-majority in the state Legislature, and Secretary of State Christi Jacobsen, championed legislation they say is necessary to make elections more secure.

This was playing out shortly after the 2020 election when former President Donald Trump and other Republicans pushed false and unsubstantiated claims of widespread voter fraud. Moderate Republicans and Jacobsen have maintained that widespread fraud did not occur in Montana, but they say these new laws aim to prevent it.

During the trial, the defense called Republican Sen. Greg Hertz of Polson, who talked about the legislative intent behind the laws that regulate voter IDs and third-party ballot collection.

Polson: “A lot of the bills that we pass in the Legislature are preventative measures — that we make the public aware that this particular behavior is not allowed, and that, I think, fits in right with these bills also.”

Ragar: However, another lawmaker, Republican Rep. Geraldine Custer, testified that GOP lawmakers were influenced by possible political gain when discussing one of the disputed laws that regulates the use of student IDs at polling places.

Custer: “The general feeling in the caucus is that college students tend to be liberal and so that’s the concern with them voting, having all of them vote here,” Custer said.

By the end of the session, lawmakers passed laws to eliminate same-day voter registration in Montana, add new voter ID requirements that prohibited the use of stand alone student IDs, and to prohibit payment for third-party ballot collection.

Who is challenging these laws?

Four Montana tribes, two Native American advocacy organizations, three youth political action groups and the Montana Democratic Party sued Secretary Jacobsen, arguing they’re unconstitutional. They say the laws unduly hinder Montanans’, especially marginalized populations’ and young people’s, right to vote.

The plaintiffs pointed to analysis from several political scientists that show these laws increase the money, time, resources and information it takes for a voter to cast a ballot — making it more difficult to vote. Alex Street, a political science professor at Carroll College, told the court the data clearly show the new election laws adversely impact voter registration and turnout.

Street: “And the story is really quite consistent in a way that I don’t always see when I’m doing data analysis. The world is a messy place. But here we have really quite consistent patterns."

Ragar: The court also heard from political science and election experts from Utah and Wisconsin who made similar claims.

How did the Secretary of State’s Office respond to that?

During cross-examination, the defense tried to poke holes in the data provided by their experts. For example, attorney Mac Morris clarified with Professor Street that his analysis doesn’t carry a margin of error to measure its certainty.

Morris: “So in terms of your ultimate conclusions and opinions in this case, you can’t give a single number of confidence intervals or margin of error for that," Morris asked.

Street: "I think that sounds like a fair summary of what I just said."

Ragar: The state’s defense also tried to make the point that adding requirements to voting, like showing photo ID, doesn’t necessarily equate to disenfranchisement. Although the groups challenging the laws are arguing there’s a much more direct link to disenfranchisement.

Did they give any examples? 

Dawn Gray, an attorney for the Blackfeet Tribe, testified about the challenges of voting now that there are more regulations in place for how groups collect ballots from voters who would otherwise have a hard time turning them in. She said that Glacier County removed ballot drop boxes from around the Blackfeet Reservation in 2020, meaning residents relied heavily on third party collectors to turn ballots in. She said the ballot collection programs run also help alleviate concerns of racism and discrimination for Native voters at polling places.

Gray: “If you’re being dismissed and marginalized, you’re not going to get the information that you need to successfully vote."

The defense also got to call their own witnesses. What kind of testimony did they provide?

The state boiled arguments down to two main themes — administrative burden for election administrators and elections security. They called on administrators from Yellowstone, Broadwater and Fergus counties to talk about the added stress of registering voters on Election Day. The witnesses said this can lead to longer lines for voting, a higher chance for administrative error and they appreciate the new law that eliminates same-day voter registration.

Shaylee, the midterm election is just about two months away – are we going to get a resolution on these laws before then?

That remains to be seen, Freddy. Judge Michael Moses said he couldn’t say when he would issue a final ruling, but that it would be as soon as possible. These laws are currently on the books, so if Judge Moses does not issue a ruling before Election Day, voter registration will end the Monday before Election Day at noon, in-person voting will require an ID that shows proof of residence and third-party ballot collection can only happen on a volunteer basis.

Copyright 2022 Montana Public Radio. To see more, visit Montana Public Radio.

Shaylee is a UM Journalism School student. She reports and helps produce Montana Evening News on MTPR.