Driscoll v. Stapleton, DA 20-0295

Docket NºDA 20-0295
Citation2020 MT 247, 473 P.3d 386, 401 Mont. 405
Case DateSeptember 29, 2020
CourtUnited States State Supreme Court of Montana

401 Mont. 405
473 P.3d 386
2020 MT 247

Robyn DRISCOLL; Montana Democratic Party; and Democratic Senatorial Campaign Committee, Plaintiffs and Appellees,
v.
Corey STAPLETON, in his official capacity as Montana Secretary of State, Defendant and Appellant.

DA 20-0295

Supreme Court of Montana.

Submitted on Briefs: August 26, 2020
Decided: September 29, 2020


For Appellant: Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Civil Bureau Chief, Aislinn W. Brown, Hannah E. Tokerud, Assistant Attorneys General, Helena, Montana

For Appellee: Peter Michael Meloy, Meloy Law Firm, Helena, Montana, Matthew Gordon, Perkins Coie, LLP, Seattle, Washington

For Intervenors: Alex Rate, Lillian Alvernaz, ACLU of Montana, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

401 Mont. 408

¶1 Montana Secretary of State Corey Stapleton appeals a Thirteenth Judicial District Court order that temporarily enjoined two Montana election laws, one requiring absentee ballots to be returned to local election offices no later than 8:00 p.m. on Election Day and the other restricting the delivery of such ballots by persons other than the elector. We stayed the court's injunction on the first issue shortly before the June 3, 2020 primary election, and we now reverse its preliminary injunction against the election-day ballot deadline. Applying the same standard of review, we affirm the preliminary injunction against the ballot-delivery restriction.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The case comes before this Court following a preliminary injunction hearing and order in favor of Appellees Robyn Driscoll, the Montana Democratic Party, and the Democratic Senatorial Campaign Committee (collectively "Democrats"). They filed a Complaint in Yellowstone County District Court against Appellant Corey Stapleton in his official capacity as Secretary of State ("Secretary") on March 13, 2020; the case was assigned to the Honorable Donald L. Harris. Democrats alleged the unconstitutionality of the Ballot Interference Prevention Act ("BIPA"), Tit. 13, ch. 35, part 7, MCA, and the election-day ballot deadline ("Ballot Deadline") found in §§ 13-13-201(3), 13-13-211(3), and 13-19-106(5)(b), MCA. The Complaint alleged constitutional violations against the fundamental right to vote, the right to speak and associate, and the right to due process. Democrats’ Motion for Preliminary Injunction sought to enjoin BIPA and the Ballot Deadline during the pendency of the case. A related case, Western Native Voice v. Stapleton , DV-2020-377, was filed the day before—also in the Thirteenth Judicial District Court for Yellowstone County—alleging the same constitutional infirmities of BIPA. Plaintiffs in that case, assigned to the Honorable Jessica Fehr, are

401 Mont. 409

Western Native Voice, Montana Native Vote, Assiniboine and Sioux Tribes of Fort Peck, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Crow Tribe, and Fort Belknap Indian Community (collectively "WNV"), and Defendant is the Secretary in his official capacity.

¶3 BIPA was introduced in the 2017 Montana Legislature with an asserted purpose of protecting election integrity and instilling

473 P.3d 389

voter confidence in the election process. The bill's sponsor said during legislative committee hearings that he had brought the bill because of voters’ suspicions and concerns he had received over ballot-collection activity. The bill received no public testimony in support but significant testimony in opposition. No one testified to specific instances of voter fraud or ballot tampering.1 BIPA passed both houses of the Legislature, and Montana voters approved it as a legislative referendum on November 6, 2018. It has not yet been in effect for a statewide general election.

¶4 Under BIPA's provisions, absentee ballots, voted or unvoted, may be collected from individual voters only by certain persons, including election officials, postal workers, or the voter's family members, household members, caregivers, or acquaintances. Section 13-35-703, MCA. With the exception of election officials and postal workers, these enumerated individuals are limited to collecting and conveying up to six ballots during an election cycle; they must sign a registry upon delivery of the ballots, providing their name, address, phone number, relationship to each voter, the voter's name, and the voter's address. Sections 13-35-703(3), 13-35-704, MCA. Violation of BIPA's restrictions carries a fine of $500 for each ballot collected unlawfully. Section 13-35-705, MCA.

¶5 Democrats allege that BIPA places an unconstitutional barrier between the polls and certain voting groups that likely would not have their votes counted without the ballot-collection efforts the law now prohibits. Since no-excuse absentee ballots first were permitted in 1999, there has been a significant increase in absentee ballot use in Montana. Democrats showed that in 2018, over 73 percent of votes in Montana were cast by absentee ballots. Democrats presented evidence before the District Court to demonstrate certain distinct voting groups’

401 Mont. 410

reliance on this option for voting and the accompanying organized and unorganized ballot-collection efforts, including: senior and disabled voters who may have trouble with transportation, standing in line, or the unavailability of a caregiver to assist them; first-time student voters, who often are less familiar with the voting process; and working students, working parents, or low-wage workers, who may not have the time or availability to vote in person.

¶6 Democrats also presented evidence to demonstrate that the importance of absentee ballots and ballot-collection efforts is more significant for Native American voters than for any other group. Disregarding BIPA's possible impact, Native American voters as a group face significant barriers to voting: many live far away from county elections offices and postal centers;2 many have limited access to transportation; many have limited access to postal services, lacking residential mailing services and using Post Office boxes instead, which brings associated costs and travel; mail for those living on reservations may take longer to reach its destination than for other voters in the state; some reservations lack a uniform and consistent addressing system, which makes it difficult for residents to register to vote; and many experience higher rates of poverty. Further, despite satellite voting locations on some reservations, this requires tribes to submit annual written requests, a significant administrative hurdle, and typically those locations still are located quite far from many Native American voters. Democrats argued that these barriers have led to the disenfranchisement of a significant number of Native American voters.

¶7 By using absentee ballots and organized ballot collection efforts, Democrats contend, individual Native American voters and organizations like Western Native Voice have been successful in overcoming many of these barriers to allow Native Americans to exercise their right to vote in Montana. According to Western Native Voice, it and other similar

473 P.3d 390

organizations’ overall efforts (including canvassing, education, ballot-collection, and similar efforts) have led to increased Native American voter turnout. Compared to the 2014 midterm election, 7,704 more tribal community members voted in the 2018 election with an increase on each reservation within Montana: from 39% to 70% in Fort Belknap, 47% to 68% in CSKT, 32% to 59% in Fort Peck, 33% to 59% in Blackfeet, 29% to 57% in Crow, 23% to 51% in Rocky Boy's, and 30% to 50% in Northern Cheyenne. Referenced by

401 Mont. 411

Democrats in their argument below and on appeal was the evidence that many Native Americans living on reservations pool their ballots together with one family or community member who will collect and deliver them. Thus, Democrats argue, BIPA's prohibition on who may collect ballots and how many ballots may be collected presents a new challenge to these ongoing efforts.

¶8 Unlike BIPA, the Ballot Deadline has been in place through numerous election cycles. Even before it was codified in 2011, election officials followed the same deadline as a matter of policy. The statute requires that absentee ballots be received in the proper election offices by 8:00 p.m. on Election Day, regardless of when they were mailed. Section 13-13-201(3), MCA. There are very limited exceptions, including federal write-in absentee ballots for military and overseas voters. Section 13-21-206(c), MCA. The Secretary contested Democrats’ effort to enjoin the Ballot Deadline on the ground that it provides uniformity, fairness, clarity, and expediency in determining election results. In response, Democrats presented evidence of the variability and inconsistency of mail delivery as well as misunderstanding and confusion over when ballots must be mailed, which the District Court found may lead to burdens for first-time voters, persons with less education, and persons who historically have relied on...

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11 practice notes
  • DSCC v. Simon, A20-1017
    • United States
    • Supreme Court of Minnesota (US)
    • October 28, 2020
    ...limit on ballot collection. Id. at 691–92. A recent decision by the Montana Supreme Court, Driscoll v. Stapleton , No. DA 20-0295, 401 Mont. 405, 473 P.3d 386, 393–94 (Mont. Sept. 29, 2020), addressed a voting burden claim, rather than a preemption claim under section 208.12 We conclude tha......
  • Menges v. Knudsen, CV 20-178-M-DLC
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • May 11, 2021
    ...Malcomson , 339 P.3d at 1239. This is the "most stringent level of scrutiny" under which few laws survive. Driscoll v. Stapleton , 401 Mont. 405, 473 P.3d 386, 392 (2020). And having already concluded that Montana's registration statutes, as applied to Menges, cannot survive heightened (sub......
  • Wittman v. City of Billings, DA 20-0609
    • United States
    • Montana United States State Supreme Court of Montana
    • July 5, 2022
    ...site - applying Restatement (Second) of Torts § 929 (1979) in state inverse condemnation context). [35] See also Driscoll v. Stapleton, 2020 MT 247, ¶¶ 38-40 and 54-56, 401 Mont. 405, 473 P.3d 386 (Sandefur, J., dissenting) (discussing strict, intermediate or middle-tier, and rational basis......
  • Wittman v. City of Billings, DA 20-0609
    • United States
    • Montana United States State Supreme Court of Montana
    • July 5, 2022
    ...site – applying Restatement (Second) of Torts § 929 (1979) in state inverse condemnation context).35 See also Driscoll v. Stapleton , 2020 MT 247, ¶¶ 38-40 and 54-56, 401 Mont. 405, 473 P.3d 386 (Sandefur, J., dissenting) (discussing strict, intermediate or middle-tier, and rational basis s......
  • Request a trial to view additional results
7 cases
  • DSCC v. Simon, A20-1017
    • United States
    • Supreme Court of Minnesota (US)
    • October 28, 2020
    ...limit on ballot collection. Id. at 691–92. A recent decision by the Montana Supreme Court, Driscoll v. Stapleton , No. DA 20-0295, 401 Mont. 405, 473 P.3d 386, 393–94 (Mont. Sept. 29, 2020), addressed a voting burden claim, rather than a preemption claim under section 208.12 We conclude tha......
  • Menges v. Knudsen, CV 20-178-M-DLC
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • May 11, 2021
    ...Malcomson , 339 P.3d at 1239. This is the "most stringent level of scrutiny" under which few laws survive. Driscoll v. Stapleton , 401 Mont. 405, 473 P.3d 386, 392 (2020). And having already concluded that Montana's registration statutes, as applied to Menges, cannot survive heightened (sub......
  • Wittman v. City of Billings, DA 20-0609
    • United States
    • Montana United States State Supreme Court of Montana
    • July 5, 2022
    ...site - applying Restatement (Second) of Torts § 929 (1979) in state inverse condemnation context). [35] See also Driscoll v. Stapleton, 2020 MT 247, ¶¶ 38-40 and 54-56, 401 Mont. 405, 473 P.3d 386 (Sandefur, J., dissenting) (discussing strict, intermediate or middle-tier, and rational basis......
  • Brown v. Gianforte, OP 21-0125
    • United States
    • Montana United States State Supreme Court of Montana
    • June 10, 2021
    ...is axiomatic that if 488 P.3d 554 a court can interpret a statute, it also can review its constitutionality. See Driscoll v. Stapleton , 2020 MT 247, ¶ 11 n.3, 401 Mont. 405, 473 P.3d 386 ; see generally Marbury v. Madison , 5 U.S. 137, 167, 177-78, 1 Cranch 137, 2 L.Ed. 60 (1803) ; Gen. Ag......
  • Request a trial to view additional results

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