Montanans are currently embroiled in a debate over whether to transition to a vote-by-mail system, a move that could make Montana the third state, after Oregon and Washington (which has a “county option”) to adopt the mail ballot system.  The State Association of Clerks and Recorders have come out in support of the proposal, calling the proposal their “top legislative priority” in the face of increased use by voters, higher costs, administrative difficulties, and the potential for higher turnout.  The group previously supported legislation calling for a “county option” in the 2009 Legislature, and proposed a similar draft bill to the State Administration and Veterans Affairs (SAVA) interim committee in June 2010.

Not So Fast

Despite support from county elections officials, the 2009 “county option” bill, a proposed pilot program, and the County Clerk’s June draft proposal all suffered defeat along mostly partyline votes.  Democrats have largely aligned against these measures due to concerns that a sudden shift to mail elections would disenfranchise vulnerable populations that form key Democratic constituencies.  Groups representing these more-vulnerable individuals, such as the elderly, low-income, youth voters, and tribal members, assert that closing polling places without adequate safeguards would reduce voter accessibility and potentially disenfranchise them.

Additionally, opponents voiced fears at the June SAVA hearing that once polls are closed, unregistered or inactive voters could be forced to travel to overcrowded, centralized polling locations, increasing the electoral burden and perhaps discouraging participation.  Indeed, a 2007 report for the SAVA committee hinted at this fear, finding that the gap between Oregon’s registered voter turnout and the Voting Eligible Population (VEP) turnout has steadily increased since their switch to mail elections in 1998, hitting 19.5 percent in 2006.  By comparison, Montana averages a roughly seven percent gap.  Future bills would thus have to address these concerns over safeguarding transitory and inactive voter access to be successful.

Slouching Towards Oregon?

Despite legislative rebukes and concerns over the effect on vulnerable voters, increased individual voter interest in “no excuse” absentee voting has combined with strained county elections offices to again bring the prospect of complete mail ballot elections to the fore.  In fact, county elections officials and individual voters have embraced mail ballot elections to such a degree that they have created mail ballot elections, through low-level initiative, across the state.

Currently, Montana law grants elections officials the option to conduct municipal elections entirely by mail, and gives individuals the option to request a permanent “no excuse” absentee ballot.  (Montana is one of five states that allow “permanent no-excuse absentee” voting).  A 2008 SAVA study found that over 80 Montana cities conducted all-mail municipal elections in 2007, while 42 percent of ballots cast in the 2008 general election (where counties are required to operate polls) were by voluntary “no excuse” absentee ballots.  This enthusiasm for voting by mail continued into the June 2010 primaries, where over 80 percent of voters in the three most populous counties (Cascade, Missoula, and Yellowstone) voted by mail.  With almost half of the Montana electorate choosing to vote by mail, and large numbers of cities holding mail-in municipal elections, county elections officials and voters may be creating a de facto mail ballot system ahead of the legislature and despite the foregoing concerns.

Grappling with a “Two Election” System

The effects of this nascent electoral trend are being felt by county elections officials, who are navigating an increasingly bifurcated election system with falling budgets and dwindling poll workers.  This “hybrid system” has “put enormous pressure on Election Officials, especially on Election Day,” according to Yellowstone County Elections Administrator Bret Rutherford.  The increased burden of a dual system is exacerbated by the complexity of elections under the Help America Vote Act, leading to heavier county elections burdens in a state facing a projected $400 million budget deficit in 2013.   Indeed, Yellowstone and Gallatin County elections officials recently closed the majority of their polling locations to address this shifting dynamic.

County Clerks claim the current system has stretched county elections resources and led to greater voter confusion, as municipal elections are conducted by mail while federal elections are held at the polls.  Due to the steady increase in absentee voting, prevalence of mail-in municipal elections, and growing administrative pressures, Montana County Clerks have almost uniformly embraced a transition to vote-by-mail elections.

A Compromise?

To address the concerns raised by both sides of the debate, Montana Secretary of State Linda McCulloch has assembled a working group including representatives from the clerks, Montana Conservation Voters, disability rights groups, youth voters, Montana Women Vote, and the Montana Native American Tribes to address these issues and prepare legislation for the 2011 Legislature.  Where prior efforts failed due to claims that the drafting process did not address concerns of affected groups, the working group was convened with the hopes of reaching a consensus and fostering “face to face discussion,” according to testimony by McCulloch before the June 2010 SAVA hearing.  In light of these discussions, the County Clerks urged the SAVA panel to drop their proposed legislation at a September 13th meeting, stating that they believed the SOS working group represented a “good chance” to create a consensus bill.  If the clerks and various opposition groups can hammer out a consensus bill by the next legislative session in January, which Secretary McCulloch believes is likely, Montanans may soon be voting entirely by mail.  If they weren’t already.

James Zadick is a second-year student at William & Mary Law School.


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