Three proposals linked to the efforts of a dedicated panel of six lawmakers, assigned with the responsibility of investigating methods to enhance and improve Montana’s election system, are among the numerous bills that must meet a critical Friday deadline in the 2023 Legislature.
The Legislature’s Joint Select Committee on Election Security has spent much of the past two months sifting through the intricacies of how state and local officials prepare for, conduct and audit Montana elections. Committee members have received extensive presentations from the secretary of state’s office, from county election administrators and from executives with ES&S, the company that manufactures Montana’s vote tabulating machines. They’ve also fielded public comment from a dedicated band of citizens regarding allegations of impropriety and purported vulnerabilities in the voting process.
Lawmakers from both parties have spoken repeatedly this session about the need to reaffirm and rebuild public trust in elections. Former President Donald Trump’s loss in November 2020, and his efforts to challenge those results, fueled a national movement of denial and skepticism that continues to produce widespread claims of voter fraud and election insecurity. Many of those claims have been disputed or debunked by election researchers, but as the committee has learned this year, the underlying suspicions are not so easily dismissed. Even legislators who voice confidence in the integrity of Montana’s elections suggest that there’s room for improvement.
The select committee has focused its policy efforts primarily on two key pieces of election infrastructure: absentee voter lists and the state’s electronic vote tabulators. The committee’s chair, Sen. Carl Glimm, R-Kila, told Montana Free Press Thursday that those proposals have received a positive response from the broader body of lawmakers on the Senate side.
Glimm explained that the items discussed in the [select] committee were thoroughly developed, which is why they garnered strong bipartisan backing.
So far, let’s examine where the debate has taken us.
COMMITTEE BILLS
Contrary to most legislative committees, the election security select committee lacks the power to directly push bills to the House or Senate floor. Instead, any proposals it develops must be sent to a standing committee for review. This is why the Senate State Administration Committee is currently considering three new election-centric measures that were forwarded to them this week.
The first, Senate Bill 481, would require the 46 Montana counties that use electronic voting machines to collect machine-produced spreadsheets known as “cast vote records” and digitally retain them for a period of seven years. At the national level, election skeptics view cast vote records as a valuable tool for detecting voter fraud, a claim researchers have repeatedly contested. Public requests for cast vote records swept across Montana last year, with Lewis and Clark County receiving 113 such requests on a single day in August.
During the development of SB 481 last month, the select committee engaged in discussions regarding the potential legal concerns surrounding the disclosure of specific voting records to the public. The committee faced a dilemma on whether the protection of ballot privacy, as guaranteed by the Montana Constitution, should also encompass cast vote records or ballot images – digital snapshots of individual ballots captured by a tabulator. Despite some members advocating for their inclusion in the bill, the committee failed to reach a consensus on this matter. Ultimately, SB 481, sponsored by Glimm, took the form of a records retention measure that allows for the release of cast vote records if a judge determines there is sufficient reason to investigate potential election misconduct.
The committee’s back-and-forth underscored a fundamental difference of opinion about what its members were hoping to accomplish with regard to cast vote records. Sen. Theresa Manzella, R-Hamilton, argued that requiring judicial approval to release cast vote records would hamper independent citizen investigations that members of the public might wish to launch into an election. Rep. Ed Stafman, D-Bozeman, countered that enabling such investigations would be “bad policy” and result in “chaos” on par with Arizona’s controversial 2020 audit.
Stafman expressed his concern, stating that having a parallel citizen group duplicating the tasks of the county clerk and recorder does not enhance election integrity, but rather diminishes it.
During her testimony before the Senate State Administration Committee on February 25, Jennifer Hensley, representing Missoula County, expressed her support for the proposed measure. She stated that county officials would be willing to spend approximately $119 on a thumb drive to store the records, as long as it enhances trust in the election process. However, Eric Bryson, the Executive Director of Montana Association of Counties, opposed the bill. He argued that it would obligate counties to buy specialized computer equipment needed to extract records from the machines, without providing any state funding to cover these expenses.
Bryson repeated his concern moments later during testimony on Senate Bill 482, the second of the select committee’s proposals carried by Glimm. That proposal would mandate that county election offices conduct a so-called hash validation test on tabulators before and after every election. As Glimm explained in his introduction, a hash validation test compiles the unique sequence of 0s and 1s in an individual tabulator’s programming into a single number, providing a baseline to determine whether that programming has been manipulated. In response to questioning from Sen. Wendy McKamey, R-Great Falls, Bryson estimated the equipment costs for counties to comply with SB 482 at roughly $666,000.
SB 481 was approved by the Senate State Administration Committee with a 9-1 vote on Monday, while SB 482 received approval with an 8-2 vote.
The third piece of the select committee’s policy rollout is Senate Bill 498, sponsored by Sen. Shane Morigeau, D-Missoula. The proposal would require counties to conduct routine maintenance of their absentee ballot lists by comparing those lists to national change of address files. SB 498 also calls for notices to be mailed to all absentee voters to confirm their addresses, and for targeted notices to be sent to anyone who does not respond or did not vote in the preceding federal election. If a voter fails to respond to the second mailer, their status would be changed to inactive until they appear in person at their county election office with proof of their address.
The committee had a discussion about whether to make absentee voters verify their status every year and send back renewal cards by mail, or else they would be taken off the absentee list. Morigeau and Stafman disagreed with both suggestions and were subsequently removed. The Senate State Administration Committee gave unanimous approval to SB 498.
On Thursday, the Senate floor saw initial votes approving all three bills.
MORE WORK AHEAD
The select committee’s work is still incomplete as they have yet to finalize the establishment of a dedicated enforcement branch at the Montana Department of Justice, solely focused on handling election law violations.
Committee members have yet to agree on exactly what that proposal will look like. In hearings, Republicans have expressed a desire to replicate similar efforts in other states including Texas, and Manzella stressed her opinion that a cybersecurity expert be a required part of any investigative unit. Democrats, meanwhile, have questioned whether additional state staff would be required, and continue to stand firm on ensuring that election officials are protected against intimidating behavior. Prior to this week’s transmittal crunch, both sides appeared to be growing closer to consensus, with Morigeau acknowledging the need for a central “hub” for election workers and concerned citizens to turn to with election-related complaints and inquiries.
Unlike the other three bills to emerge from the select committee’s two-month span of hearings, that fourth piece isn’t subject to Friday’s cutoff date. A working draft of the proposal calls for a $175,000 appropriation for the Department of Justice to fund two additional staffers for a “election security and integrity office.” Friday is the last day to request appropriations bills, and those bills aren’t required to be transmitted from the House to the Senate until April 3. In other words, the committee’s work on the enforcement front will continue apace when the Legislature reconvenes for its second half next week. Glimm anticipates the committee will have one final meeting to button up that proposal before dissolving for the remainder of the session.
He remarked that since we required the approval of three-fourths of the committee members for any decision, it was quite an achievement to successfully pass four bills.
This story was updated March 2, 2023, with comment from select committee chair Sen. Carl Glimm.
