Voting laws trial begins by zeroing in on how new regs affect Native Americans
(Daily Montanan) Three laws, two-weeks’ worth of testimony and evidence, and more than two dozen lawyers kicked off a trial that will decide whether ballot collectors in Montana can be paid, what forms of identification are acceptable to vote and whether removing Election Day registration is legal.
On Monday, the two-week trial began in Yellowstone County District Judge Michael Moses’ courtroom with opening statements and expert witnesses.
Secretary of State Christi Jacobsen’s office argued that the group of plaintiffs’ attorneys, including the American Civil Liberties Union and Western Native Voice, could not present a single resident that is harmed by the new laws, and that any harm done by them is purely speculative because the office hasn’t been able to implement rules that follow the law. Moreover, the laws, attorneys argued, are need to keep Montana’s election safe, secure and trustworthy.
Meanwhile, experts testified that the new laws likely disenfranchise Native American voters, and provide no benefit to Montana elections because voter fraud in the state is nearly non-existent.
Discriminating against Native Americans
The different laws at play in this one trial center on one theme: Groups of voters, mainly Native Americans, are put at a disadvantage by the new laws.
Professor Daniel McCool, a professor emeritus with the University of Utah, has written and published extensively about how election systems are designed to increase or decrease access to voting. Often called a “voter cost,” McCool said that voter costs are cumulative and can add barriers to voting. For example, limiting voting locations or even distance to polling places can add to the voter costs. The higher the voter cost, the less likely a person is to vote, McCool said.
“These are the things the voters have to overcome to vote,” McCool said. “The more poverty you experience, the less likely you are to vote.”
During his lengthy testimony on Monday, McCool said that the number of costs added to Native Americans living on reservations has grown with the new laws. He also testified that the voter costs for Natives is often very different than those faced by non-Natives.
In a report of nearly 200 pages submitted previously to the court, McCool concluded that the new laws provided “no public benefit.”
Using statistics from the United States Census Bureau and the state, McCool presented the court with information including that poverty rates on the reservation are three times as high as those not living there. Moreover, access to vehicles is also radically different with approximately three times more Natives not having access to a vehicle, which means it’s impossible to get to a place to register or vote.
McCool used other indicators, including homelessness, access to the postal service and even number of households that have running water to demonstrate to the court that Native Americans living on reservations throughout Montana face higher rates of poverty, and therefore, would have higher voter costs.
He told the court that eliminating Election Day registration doubles the already high costs of voting because Natives may have to make several trips to vote. However, attorneys for Jacobsen pushed back at the idea, pointing out that any resident, Native or otherwise, can register and vote in the 30 days leading up to the election in a process known as “late registration.”
“When I go to vote, I take my ballot and drop it in the mailbox right across the street. If I had to drive 157 miles to do the same thing that I could do in one trip, I am not sure I’d do it,” McCool said. “And I believe in democracy.”
Professor Ryan Weichelt of the University of Wisconsin-Eau Claire was another expert who prepared a report looking at average distances from reservations to county seats, post offices and Department of Motor Vehicle locations. He chose those because registering to vote or casting a ballot often takes place at those locations.
Using GIS data, he determined that Native Americans living on Montana’s reservations, with the exception of Flathead, live nearly twice the distance as their non-reservation counterparts when it comes to accessing the post office, election services or the DMV.
“As the population of Native Americans increases, there tends to be lower voter turnout,” Weichelt said, pointing to Rosebud, Blaine, Big Horn and Roosevelt counties.
But attorney Mac Morris representing Jacobsen questioned Weichelt on why he hadn’t included polling places or satellite voting locations in his study.
Voter fraud in Montana
Much of Monday’s testimony focused on election security and fraud in Montana, with both sides offering a different perspective on the issue.
Jacobsen’s office has argued the Legislature and her office need to make sure elections are more secure, but the expert witnesses rebutted that belief, saying documented voter fraud in Montana is virtually non-existent, and that the new rules far outweigh any benefits.
In their opening statements, the plaintiffs showed clips of Jacobsen’s in-house counsel, Austin James, struggling to find documented cases of voter fraud, and researching the question in the archives of the state’s historical society.
James presented an example of a 1912 case from Butte where bandits shot officials to take a box of ballots. And James also pointed more votes cast in 1887 than there were people in an area.
However, McCool found just one Montana case of fraud in a nationwide database that stems from a man who voted using his ex-wife’s ballot.
“Even the Secretary of State of her own website said there were no significant problems during the 2020 Election,” McCool said.
McCool told the court that he studied fraud in states that allowed vote-by-mail versus those that outlawed it, and found that the chances of fraud were statistically insignificant.
“My research does not support the conclusion that ballot collection leads to voter fraud,” he said. “Voter fraud is amazingly rare in this country.”
However, attorneys for Jacobsen criticized McCool for forming an opinion before the Secretary of State implemented specific rules for the laws, criticized him for not interviewing enough people, and not taking into consideration how the laws benefited the state, enhancing how it conducts election.
“If we wanted to make these rules easier for people running the elections, the best way to do it would be to eliminate part of the electorate,” McCool said. “But the purpose of elections is to give voice to people.”
BIPA redux
During some of the trial on Monday, the plaintiffs’ groups argued that they shouldn’t have to bring the lawsuit against HB 530, which governs ballot collectors. In 2020, a similar trial and two Yellowstone County Judges separately ruled that laws passed in 2019 that banned collectors disproportionately disenfranchised Native Americans living on reservations.
Attorney Jacqueline DeLeon argued that the minor change the 2021 Legislature made, passing a similar bill, is forcing tribes to re-litigate the case after winning.
“We should not have to bring this case again,” she told the court.