On Tuesday, an attorney for Montana told a judge that not enough voters in the state had been affected by a law restricting ballot collection for the law to be overturned.
“How many people need to be affected?” asked Yellowstone County District Judge Donald Harris.
Assistant Attorney General Stuart Segrest said no court had determined that. But Harris pressed him on his opinion of an appropriate threshold, and Segrest suggested maybe 5% to 10%.
“I would say certainly more than the evidence in this case, which is 2,500 people over two election cycles,” Segrest said.
Trial concluded Tuesday in a lawsuit brought by Democratic organizations challenging two election deadlines and a law restricting ballot collection.
There’s no timeline for the judge to rule.
The case, brought by the Montana Democratic Party and the Democratic Senatorial Campaign Committee, is the second in back-to-back trials challenging the Ballot Interference Prevention Act of 2018.
The law put a stop to organized ballot collection efforts that plaintiffs say can make the difference between people voting or not.
The plaintiffs are represented by Matthew Gordon, of Perkins Coie LLP, an international law firm also representing Democrats in similar legal battles in other states. Helena attorney Mike Meloy is also on the case.
The state is represented by Assistant Attorneys General Aislinn Brown, Hannah Tokerud and Stuart Segrest.
Various groups in Montana relied on ballot collection in order to vote, the Democrats argued this week. Before the ballot collection law was passed, Disability Rights Montana provided the service for voters who were institutionalized. Western Native Voice provided the service for voters on reservations, which have unique barriers to voting, including geographic isolation and inconsistent mail service.
The law also ended the practice some counties used of placing drop boxes in public places for voters to use. Now some states are adding drop boxes in response to the surge expected this fall in absentee voting.
Recent changes to post office operations have prompted complaints about slowed mail and concerns about voters’ ability to have their voice heard this fall. An unprecedented share of ballots are expected to be cast by mail this year, due to the coronavirus pandemic. The post office has recommended residents voting by mail get their ballots in the mail by Oct. 27.
Voting fraud is rare. A witness called by the Democrats said that over the course of a decade and more than seven million ballots cast, he could confirm only one case of illegal voting.
The ballot collection law, pitched as a safeguard to elections integrity, would not have prevented that single case, the Democrats have noted. The case came in 2011 when a man filled out his ex-wife’s ballot without her permission.
The law limits people to dropping off no more than six ballots completed by other individuals, and requires them to complete a form saying whose ballot they’re delivering. Delivering more ballots is punishable by up to $500 per ballot in excess of the limit.
In addition to challenging the ballot collection law, the Democrats in trial this week argue that two longstanding voting deadlines in Montana create too big a burden for voters: the 8 p.m. Election Day deadline for most absentee ballots to be received, and the 5 p.m. deadline on the day after Election Day for ballot errors such as a missing signature to be corrected.
Harris said the election deadlines were the prerogative of the Montana Legislature. He said if he ordered a postmark deadline for the November election only, it would still allow lawmakers to review the state’s election deadlines and determine if changes were needed.
Gordon said if the court was going to rule that way, it was “understandable.” Harris has yet to rule. Other courts have made similar rulings recently, including one in Wisconsin on Monday.
A witness for the state testified this week that shifting to a postmark election could backfire. Lonna Atkeson, a political science professor at the University of New Mexico who studies voting behavior, said people inevitably procrastinate.
“The pressure of Election Day is really important to getting that ballot in,” Atkeson said.
Atkeson said a postmark deadline could actually result in more ballots being rejected because, with a last-minute crush of ballots entering the mail stream on Election Day, they might not all arrive in time to meet the receipt deadline. Under a postmark deadline, voters would need to have their ballots postmarked by Election Day, but the ballots would also need to be received at the elections office by a certain cutoff date.
The Democrats’ attorney said there was no direct evidence to back this up.
Atkeson also testified that a postmark deadline would make it “extremely difficult if not impossible” to meet subsequent deadlines to audit and canvass the elections results.
However, three Montana elections administrators who testified in the case said they could still meet those deadlines, the Democrats’ attorney noted.
Democrats this week called the former Deputy Postmaster General Ronald Stroman, who resigned from the U.S. Postal Service in June. Stroman, who held the job for nine years, said he long pushed for states to convert to a postmark deadline as a way to reconcile postal delivery standards with state election laws.
For example, some states allow voters to request an absentee ballot close enough to Election Day that the post office can’t deliver the completed ballot back to the elections office in time. A postmark deadline would address that, he said.
Stroman noted that the post office is currently delivering the mail below its target times. For first class mail, the agency aims to deliver that mail within two to five days, 96% of the time. Ballots are first class mail.
But for the first week of September, the agency was only hitting that timeline 88% of the time, Stroman said.
Harris said he didn’t know when he’d be able to issue a ruling but would do so as soon as possible.
The state is also waiting for a ruling in a second challenge to the ballot collection law heard earlier in September by District Judge Jessica Fehr.
The ballot collection law was suspended earlier this year by both Harris and Yellowstone County District Judge Jessica Fehr. Fehr is hearing a parallel challenge to the law in a lawsuit brought by advocacy group Western Native Voice and five tribal governments.