Trial on constitutionality of election law starts in Billings

by Alex Sakariassen

Montana Free Press

Seated in his wheelchair next to the witness stand in a Billings courtroom Monday, 26-year-old Mitch Bohn calmly responded to a series of rapid-fire questions about his voting habits over the past eight years. 

How does he typically cast his vote? By absentee ballot, Bohn said, filling it out as early as possible and relying on his parents to drop it in the family’s mailbox. Has he ever returned his ballot another way? Once, Bohn said, when he filled his ballot out later than intended while working for Sen. Jon Tester’s 2018 reelection campaign and he had his parents deposit it at the election office to ensure it arrived on time. Is he familiar with House Bill 530, a new law that prohibits paid ballot collection in Montana, and does he have concerns about it? Yes and yes, he said.

“I don’t use a paid third party at this point, but I know that there are communities in Montana that do, and I also know that, sadly, my parents are getting older,” Bohn said. “They won’t be here forever, or even if they are here won’t be able to help me, so having that available to myself and others in the disabled community is imperative in our ability to vote.”

Bohn’s testimony came during the first day of a 10-day trial in Yellowstone County District Court examining the constitutionality of three election administration laws passed by Republican lawmakers during the 2021 Legislature. The case, bundling together three separate lawsuits, has produced a flurry of motions and hearings over the past year as the Montana Democratic Party and groups representing youth and Native voters seek to have the new laws declared unconstitutional.

The plaintiffs argue that the new election laws place added burdens on Montana voters that threaten their ability to participate in the electoral process.

Secretary of State Christi Jacobsen, the sole defendant, has maintained that voters continue to have ample and easy access to the Montana ballot, and that the new laws were designed to increase voter confidence by protecting the state’s elections from fraud and intimidation.

In addition to HB 530, the other two laws up for debate before Judge Michael Moses this month are House Bill 176, which ended Election Day voter registration, and Senate Bill 169, which imposed new photo identification requirements for voter registration and voting at the polls. Moses struck down a fourth law challenged by youth plaintiffs in the case earlier this month, ruling ahead of the trial that a restriction on ballot distribution to minors violated the state constitution.

Following this month’s trial, Moses will similarly decide on the constitutionality of the remaining three laws — a decision that could be appealed to the Montana Supreme Court.

During their opening remarks Monday, plaintiffs’ attorneys laid out a comprehensive roadmap for the trial’s coming days, breaking out its list of witnesses according to the specific voter groups and concerns they’ll speak to. Those groups include young and disabled voters and voters in Indigenous communities. Plaintiffs will also call on several witnesses and on expert testimony to argue the laws are, in the words of attorney Matthew Gordon, “solutions in search of a problem.”

“[Plaintiffs] have one thing in common, and that one thing is a belief in democracy, and that democracy is better when more eligible voters can access the franchise,” said Gordon, who represents Bohn and the Montana Democratic Party. “That’s what this case is about.” 

Rylee Sommers-Flanagan, an attorney with Upper Seven Law representing the case’s youth plaintiffs, said that ending Election Day registration and adding new photo ID requirements unnecessarily makes voting especially challenging for young Montanans. 

“Because new voters are beginning to engage in this process for the first time they are simply more hampered by complicated laws than anyone else,” Sommers-Flanagan said.

Attorney Jacqueline De Leon with the Native American Rights Fund said in her opening remarks that, when it comes to HB 530, the case is something of a retread of an issue previously litigated in Montana. State lawmakers in 2017 passed the Ballot Interference Prevention Act, which limited the number of ballots an individual could collect from other voters. A collection of tribal governments and Indigenous organizations such as Western Native Voice — also plaintiffs in the current lawsuit — challenged the law in Yellowstone County District Court where it was struck down in September 2020.

“Once again, tribes across Montana have banded together to protect their members’ right to vote in a federal system that has systematically and repeatedly excluded their rights for centuries,” De Leon said. The plaintiffs, she added, “should not have to bring this case again.”

On the other side, defense attorney Leonard Smith of law firm Crowley Fleck told Moses that, over the next two weeks, the court will hear testimony undermining arguments that the laws make it unduly hard to vote and affirming that the Legislature had “a legitimate and compelling interest” in enacting the laws. Citing HB 530, HB 176 and SB 169 in turn, Smith argued that each plays a particular role in combating voter fraud and, with regard to the latter two, assisting local election administrators in running smooth and accurate elections.

“Statutes are presumed constitutional and plaintiffs must meet a heavy burden to prevail on their claims,” Smith said. “We believe that when the court hears all of the testimony and evidence in this matter, it will come to one and only conclusion: that these three statutes are constitutional.”

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Much of the trial’s first day Monday focused on the alleged challenges faced by Native American voters. Daniel McCool, a professor emeritus of political science at the University of Utah, guided the court through a raft of tables he’d compiled using U.S. Census data to illustrate various disparities between Indigenous and predominantly white communities. Those disparities include higher rates of poverty and unemployment and reduced access to core infrastructure.

Lack of access to the internet means less access to voter information, McCool continued. He described roundtrip distances to county seats as great at 139 miles on the Blackfeet Indian Reservation and 157 miles on the Northern Cheyenne Indian Reservation. As for reliance on absentee voting, McCool stated his opinion that postal service is “poor to non-existent” on many Montana reservations.

“Because of all the factors that we’ve outlined today, especially the socio-economic factors, I believe [HB 176] will have a bigger impact on Native American voters,” McCool said.

He added that each of those barriers carries its own financial cost for Indigenous voters, and together they “mount up” in a way that can discourage voter participation.

McCool also spoke to his research for the plaintiffs on voter fraud rates in the country. Relying primarily on information from the conservative Heritage Foundation, he calculated the frequency of voter fraud in the United States was 0.00006%.

“That’s four zeroes and a six, all to the right of the decimal point,” he said.

During his cross-examination of McCool, Crowley Fleck attorney David Knobel questioned McCool about the sources he used to draw his conclusions and about his knowledge of Montana election laws. Knobel pointed out that Jacobsen has yet to finalize the specific guidelines for ballot collection under HB 530, suggesting tribal governments to conduct their own ballot collection efforts.

McCool said he didn’t want to speculate and when Knobel turned his questioning to the laws’ impacts on election administration and voter confidence, McCool pushed back.

“You haven’t offered any opinions in this case about how HB 530 and HB 176 may impact public confidence in elections, correct?” Knobel asked.

“Public confidence is a function of what is said about the extent of voter fraud,” McCool replied. “The way to achieve public confidence in elections is to quit telling specious lies about how extensive voter fraud is.”

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Bohn’s testimony Monday afternoon offered a view of another argument that the plaintiffs plan to revisit later in the trial: impacts to disabled voters.

Bohn, a former Democratic campaign staffer and the lone individual plaintiff in the case, spoke under examination from De Leon about his concerns as a disabled voter living in a large urban area, Billings. He discussed the details behind his disability, that he was born with spina bifida and continues to require numerous and at-times unpredictable hospital visits. As a result, he said, the challenges he faces in casting a ballot to extend his family’s own mailbox, which he’s unable to reach. Though he’s able to rely on his parents for assistance now, he continued, he’s fully aware that a time will come when he can’t.

State attorney Smith cross-examined Bohn about his past work for a string of Democratic candidates, first as a volunteer then as a paid staffer, for candidates including Sen. Jon Tester, former Gov. Steve Bullock and former congressional contenders Rob Quist and John Heenan. Bohn acknowledged that he considers himself a Democrat, that he voted for President Joe Biden and that he’s never been unable to cast a ballot by mail.

Does he believe voters have some personal responsibility to be prepared, Smith asked?

Yes, Bohn said.

Has he ever experienced difficulties with the U.S. postal service in returning his absentee ballot?

No.

Is his legal challenge confined solely to the constitutionality of HB 530?

Yes.

“So you would simply like to have the option of being able to give your ballot to the Montana Democratic Party to deliver it to the election officials if your mother and father or brother were not able to do so?” Smith asked.

“Yes,” Bohn replied.

The trial is currently scheduled to continue through Aug. 26.