HELENA (Daily Montanan) - Just a day after Montana Gov. Greg Gianforte signed two laws that would change how and when voters register, attorneys for the Montana Democratic Party have sued to stop them, saying they unfairly disenfranchise young voters, the elderly, Native Americans and the disabled even though not a single case of voter fraud has been documented in the past 20 years.

This is the second time this year when a law was challenged less than 24 hours after it had been signed into by the governor. A lawsuit challenging the governor’s power to appoint judges directly was lodged at the Supreme Court less than a day after the bill was signed.

In the lawsuit filed by Mike Meloy of Helena and Matthew Gordon of Seattle, they ask the court to strike down House Bill 176, which eliminated Election Day – or same-day – voter registration. They also asked the court to rule that Senate Bill 169, which established stricter rules for acceptable identification, as unconstitutional.

The lawsuit, filed in Yellowstone County, has been assigned to Judge Mary Jane Knisely, who coincidentally administered the oath of office to Gianforte. The Democrats have named Secretary of State Christi Jacobsen as the defendant in her role as overseeing statewide elections and voter registration.

“These laws violate everything we believe as Americans, and everything we believe as Montanans,” said Montana Democratic Party Executive Director Sandi Luckey. “They intentionally impede peoples’ voting rights.”

The party’s complaint alleges that the two bills violate provisions in the state constitution requiring equal protection under the law, arguing that young voters would be disproportionately impacted.

“It is no accident that both the Voter ID Restrictions and the Election Day Registration Ban were passed just months after Montana’s youngest voters turned out to vote at record rates,” the complaint says. “Montana’s legislators knew that both the Voter ID Restrictions and the Election Day Registration Ban would place heightened burdens on Montana’s youngest voters when it passed both laws. The Montana Legislature heard direct testimony from both student voters and advocacy organizations that both laws would impose barriers on the franchise for young voters; it passed the bill anyway in direct contravention of Montana’s Equal Protection Clause.”

Jacobsen’s office did not return a request for comment.

Greef told the Daily Montanan that the lawsuit is “unfortunate” but defended the intent and constitutionality of her bill.

“Voters can still register up until the day before the election,” she said. “This will help us conduct elections more efficiently while reducing long lines and voter frustration at the polls.”

Democrats also complained that the laws would hamper their get-out-the-vote efforts, which hinge in part on convincing people to register and vote on election day, and would force them to spend additional resources on voter education.

“By requiring an earlier get-out-the-vote operation, it may mean a small get-out-the-vote operation,” Luckey said. 

The suit outlines the recent history of voting in the state, as well as many of the safeguards in place to protect elections.

Meloy and Gordon note that the 2020 election had the highest voter turnout since 1972, and young voters (18 to 29 years old) increased nearly 40 percent from the previous 2016 general election. They claim the new laws unfairly target younger voters, the elderly and the disabled by canceling same-day election as well as restricting what forms are acceptable for identification, namely ID cards issued by state universities and colleges.

Moreover, they argue that in the past 20 years, since the state has accepted university-issued identification, there hasn’t been a single documented case of fraud. Meloy said in the court document that since no case of fraud exists, and since testimony during the current legislative session said same-day registration does not burden election officials’ job, the state doesn’t have a compelling reason to restrict or change its voting laws.

“Notably, however, the legislative proceedings were marked by a total lack of evidence of even a single instance in which Montana’s prior Election Day Registration regime and ID laws jeopardized the integrity of Montana’s elections or resulted in fraud,” the brief said, calling the lawmakers’ efforts “legislative shadowboxing aimed at imaginary threats to election integrity, and false accusations of election fraud orchestrated by those seeking to overturn the results of the 2020 presidential election, now weaponized by the Legislature to impede access to the franchise.”

Meanwhile, the lawsuit points out that more 60,000 Montanans who now vote began by registering through the same-day procedures.

In 2016, the number of voters who used same-day registration was more than 12,000 – tripling the numbers of when the practice began in 2006.

“Between 2006 and 2018, a total of 61,188 Montanans registered to vote on Election Day,” the lawsuit states.

According to the court document, it cites election experts estimating same-day registration improves turnout by 3 to 7 percent.

Of particular concern is voting access on reservation and tribal lands, where turnout typically is 20 percent less than average. Issues about access polling locations, transportation and voting registration can be significant hurdles, the lawsuit states and the changes disproportionately affect Native Americans, but also can put similar obstacles in front of disabled voters.

Young voters

The legal brief also points out that younger voters often wait until Election Day to register. Even so, Election Day registration has also been repeatedly supported by voters.

“In 2005, Senate Bill 302, which allowed eligible residents to both register and vote on Election Day, passed nearly unanimously and with overwhelming bipartisan support,” the brief said. “A total of only 16 votes – in the House and Senate combined – were cast against the bill. The following year, Montana became one of just seven states to implement EDR. Today, that number has tripled.”

In 2013, the Legislature put the issue of same-day voter registration back in front of voters, but they overwhelmingly supported keeping the practice – 80 of 100 legislative districts supported it.

The suit points out that many of the younger voters may be working during the Monday-through-Friday operation hours of county elections offices, and they may not realize which documents are acceptable and which will not work.

“Sometimes young voters may show up to their polling location on Election Day without realizing their voter registration information is out of date. Now, because of HB 176, those voters will not have the option to update their registration information on Election Day,” the suit said.

Moreover, the lawsuit contends that the state has arbitrarily eliminated a form of identification that has so far worked well – not a single case of documented fraud, even though Montana elections officials have accepted student identification cards until now.

“Those who live in a university dorm or with their parents, for example, are highly unlikely to be able to produce a utility bill in their name,” the lawsuit says. “In practice, young voters also live in a paperless world – even if they do have a paycheck or a bank account linked to their address, many will not have a physical paper copy to bring to the polls.”

The law’s change will create uncertainty and inconsistency, the Democrats contend.

“Young Montana voters who lack a Montana driver’s license, military identification card, tribal identification card, passport or Montana concealed carry permit will be forced to rely on a poorly defined and confusing hodgepodge of acceptable secondary identification in hopes of casting their ballot,” the lawsuit said.

Security concerns

Though supporters of the changing voting laws point to election security and integrity, Meloy and Gordon’s brief provides a catalog of practices to protect against voter fraud.

For example:

  • If an applicant cannot be verified currently, the individual is only registered provisionally, meaning the ballot will not be counted until their residence can be verified.
  • Election officials work with the Secretary of State, the Department of Justice’s Motor Vehicle Division, the Social Security Administration and other agencies to verify residency.
  • Voters have to affirm their registration under penalty of perjury, and the late registration requires an in-person, face-to-face interaction.
  • The Montana Votes system also flags whether an applicant has received a ballot, in addition to requiring identification.

“When pressed, proponents of the bill admitted that registering voters on Election Day has not currently caused any serious administrative problems,” the court document said. “Senator Mike Cuffe conceded that there are no administrative problems currently burdening Montana’s election administrators. When a member of the House Committee on State Administration asked Senator Cuffe to provide an administrative problem that EDR had caused, he was unable to do so.”

Meloy and Gordon also pointed out that some who testified as the legislation was being considered said that eliminating same-day voter registration may create more administrative problems by having to turn away voters who will require an explanation or may become upset.