Mont. Court Strikes Ballot Law Saying It Hindered Tribes' Vote

Law360 (September 28, 2020, 4:34 PM EDT) -- A Montana federal judge on Friday struck down the state's Ballot Interference Prevention Act, following a challenge by tribes and voting rights advocates who said the 2018 law unconstitutionally restricted their efforts to deliver and collect ballots.

District Judge Jessica T. Fehr issued her order eliminating the law Friday, following a nonjury trial that ran from Sept. 8-10, court records show. The act, also known as BIPA, served no justifiable purpose and curtailed Native Americans' "fundamental right to vote," according to the court.

Friday's order followed a preliminary injunction blocking the law's enforcement in July.

"The facts presented at trial clearly demonstrate that the limitations, burdens and voter costs imposed by BIPA on Native American and rural voters in Montana are not reasonable, are discriminatory and are not justified by any documented regulatory interests," Judge Fehr wrote.

In practice, she added, "the vagueness of the statute, coupled with penalties attached to the law, has deterred most ballot collection on reservations."

Montana voters approved BIPA in November 2018 by a vote of 301,172 in favor to 178,324 against, court records show. The law placed restrictions on who could collect ballots, as well as how many each collector could pick up.

Organizers with voting rights groups Western Native Voice and Montana Native Vote had been able to collect dozens of ballots each, but were restricted under BIPA to just six per collector, they said in a March complaint.

The law also imposed fines of up to $500 for each ballot unlawfully collected, according to the complaint, restricting collection to election officials, postal workers, caregivers, family members, household members and acquaintances.

Western Native Voice and Montana Native Vote filed suit along with the Assiniboine and Sioux Tribes of Fort Peck, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Crow Tribe and the Fort Belknap Indian Community.

The tribes and groups named Montana Secretary of State Corey Stapleton, Attorney General Tim Fox and Commissioner of Political Practices Jeff Mangan as defendants, saying BIPA violated Montanans' constitutional rights to vote, freedom of speech, freedom of association and due process.

Judge Fehr agreed on all claims except freedom of association, saying that BIPA "leaves unaffected most of the get-out-the-vote efforts described by plaintiffs." On the due process front, she said, "BIPA is unconstitutionally vague on its face."

During the trial, she noted, the tribes and advocates explained that limited car access and inclement weather can make it difficult for families on the state's seven rural reservations to drop off their ballots. On the Flathead reservation, she wrote, tribe members "frequently choose to forego a mail run to spend funds on food and heating."

"While the majority of Montanans can easily access the vote by mail process by either mailing in their ballots or dropping their ballots off at election offices, Native Americans living on reservations rely heavily on ballot collection efforts in order to vote in elections," Judge Fehr wrote.

Meanwhile, both the secretary of state's office and attorney general's office testified at trial that Montana does not have an issue with voter fraud, according to Friday's order. Mangan even described BIPA in a deposition as a "solution in search of a problem," court records show.

"The only stated governmental interest for BIPA was to stop unsolicited ballot collection and to prevent ballot interference," Judge Fehr wrote Friday. "Yet, uniform testimony ... was that unsolicited ballot collection and ballot interference was not and has never been a problem in Montana."

Native American Rights Fund attorney Jaqueline De León celebrated the order in a statement Friday.

"Native American voters living on reservations in Montana are tired of being under-served and systemically discriminated against by the state," she said. "Today's decision removes one unnecessary obstacle for rural Montana voters and helps every voice be heard in our state and federal elections."

Counsel for the state government defendants did not immediately reply to a request for comment Monday. Nor did the offices of the attorney general, secretary of state and commissioner of political practices.

The tribes and organizations are represented by Alora Thomas, Ihaab Syed and Theresa Lee of the ACLU, Natalie Landreth, Jacqueline De León, Samantha Kelty and Megan Condon of the Native American Rights Fund, and Lillian Alvernaz and Alex Rate of the ACLU of Montana.

Stapleton, Fox and Mangan are represented by Aislinn Brown, Hannah Tokerud and Stuart Segrest of the Montana Attorney General's Office.

The case is Western Native Voice et al. v. Corey Stapleton et al., case number DV 20-0377, in Montana Thirteenth Judicial District Court, County of Yellowstone.

--Additional reporting by Lauren Berg. Editing by Jack Karp.

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