By Cody McCracken

As occurs every few years, this past November millions of people cast their votes for a wide range of offices. However, a major difference this year was that many of these voters cast their ballots in a way they may have never done so before—by mail. The ongoing COVID-19 pandemic has forced nearly all states to expand their absentee voting and early voting procedures. Yet, even before COVID, voters in Montana routinely voted well before election day.

While not a fully mail-in voting state, such as Washington and Oregon, Montana has robust mail and early voting accommodations that a majority of voters take advantage of. In Montana’s 2018 general election, 73 percent of the votes cast were by absentee ballot sent in before election day.

Another unique aspect of Montana’s elections is the mass ballot collection efforts that routinely take place in some communities. Each election year, groups, both partisan and nonpartisan, dedicate time and money to collecting ballots from voters and delivering them to county election offices. This practice is commonly implemented in urban centers and retirement homes, often by political campaigns.

However, this effort is by far the most prevalent on Montana’s seven reservation tribal communities, with a number or organizations committed specifically to collecting ballots for these voters who might otherwise have socio-economic barriers to voting. These communities often lack access to home mail services and may have difficulties getting to polling sites due to limited hours, unreliable roads, lack of access to vehicles, and no public transportation. For hundreds of voters each year, this is their only reliable way to access their right to cast a vote.

However, this common and critical practice appeared to be facing its demise when in 2018, Montana voters approveda ballot referendum that greatly restricted ballot collection efforts.

LR-129, The Ballot Interference Prevention Act (“BIPA”), created new restrictions on how and by whom ballots could be collected. Under the new law, an individual’s ballot could only be collected and delivered to election offices by an acquaintance, family member, or caregiver. Even then, the collector would have to sign an affidavit swearing to their personal connection to the voter and could only deliver up to six ballots. Delivering more ballots would be punishable by up to $500 per ballot in excess of the limit.

This law looked to greatly jeopardize traditional ballot collection efforts, and many organizations, both political and apolitical, sped into court to challenge the law. One of these organizations was Western Native Voice, a “non-profit, non-partisan organization working to increase Native American participation and engagement in voting and self-determination.” Each year, Western Native Voice hires election workers who coordinate with tribal communities to collect ballots and deliver those ballots to the local election office.

Represented by the ACLU, Western Native Voice joined other similar organizations and five Montana tribal nations in fighting to strike down BIPA. Their leading argument was that the restrictions placed undue burdens on voters, primarily lower income, elderly, and Native American voters who did not have quality access to mail or the necessary transportation infrastructure and services. They argued because many tribal communities are geographically isolated and have limited access to postal service and transportation, residents of these communities often work with voting organizations to collect and transport ballots to election offices that would otherwise be inaccessible. BIPA would limit this effort, therefore disenfranchising Indigenous communities, the plaintiffs argued.

Their pleas were heard when on September 25, Montana District Court Judge Jessica Fehr found that BIPA infringes on the fundamental right to vote and violates due process rights. “This case and the facts presented at trial turn a spotlight to our fellow citizens that still live below the poverty line with limits to health care, government services, mail services and election offices — those citizens are the Native Americans that reside on reservations within Montana’s borders,” the order reads. “The questions presented cannot be viewed through the lens of our own upbringings or own life experiences, but through the lens of the cold, hard data that was presented at trial about the clear limitations Native American communities in Montana face, and how the costs associated with the (Ballot Interference Prevention Act) are simply too high and too burdensome to remain the law of the State of Montana.”

Jacqueline De León, attorney for the plaintiffs, stated “Native American voters living on reservations in Montana are tired of being under-served and systemically discriminated against by the state. Today’s decision removes one unnecessary obstacle for rural Montana voters and helps every voice be heard in our state and federal elections.”

A parallel challenge to the law went to trial before another Montana District Court Judge Donald Harris on September 15. Harris also struck down the law, finding it unconstitutional on similar grounds as Judge Fehr.

While these rulings could still be appealed to the Montana Supreme Court, the Montana Department of Justice, who was representing the state in the matter, has yet to make clear whether they will pursue such an appeal. Barring that potential appeal, it appears that the age-old practice of ballot collection that organizations like Western Native Voice have implemented, and hundreds of Montana voters rely on, will remain in place for the foreseeable future.

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