Moses questions if lawmakers found solutions for problems that didn’t exist in the electorate

JULY 11, 2022

 Attorneys in Yellowstone County District Court debate a group of voting laws passed by the 2021 Montana Legislature on July 11, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).


Lawyers for the state and several organizations spent Monday afternoon searching for the problems that solutions created by the Montana Legislature solved.

The hearing in Yellowstone County District Court focused on four bills passed by Montana lawmakers that changed voting laws and access to ballots and those collecting ballots. District Court Judge Michael G. Moses pressed lawyers for the State of Montana and Secretary of State Christi Jacobsen about what evidence lawmakers used to craft the new, more restrictive laws that would prove the state was working to make elections more secure while also safeguarding the constitutionally protected right to vote.

Both lawyers for the state as well as lawyers for the plaintiffs representing a variety of groups including Western Native Voice and the American Civil Liberties Union, spent three-and-a-half hours arguing about why Moses should issue a summary judgment for their side as they debated whether the laws unlawfully prevented Montanans access to the ballots.

Referencing a recent Montana Supreme Court decision that focused on whether the same lawmakers had the right to control or restrict guns on public university and college campuses, Moses said the high court had given clear definition as to the distinct roles and standards each part of government, the judiciary and lawmakers, must meet.

 Judge Michael Moses of Yellowstone County at a court hearing on July 11, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).


“We all have standards that we are required to meet,” Moses said. “We don’t get to sit here and do whatever we want. If I did, I’d be legislating from the bench, and it ain’t going to happen.”

For example, attorneys for the state argued that the Republican-led Legislature had passed Senate Bill 169, which rejected university-issued identification because it was easier to forge. Moses questioned what evidence the Legislature used to establish that claim.

“You have to jump through an extra hoop that you didn’t have to two years ago. If you’re a college student, it just got harder for you. What is the standard for doing that? Where is the factual basis for that decision,” Moses asked.

But an attorney representing the state and Jacobsen, John Semmens, argued that lawmakers don’t necessarily need proof to exercise their ability to make or change laws.

“The Legislature doesn’t have to provide a detailed record about designing legislation,” Semmens argued.

The hearing also focused on what level of judicial review or scrutiny should be applied to the four laws passed by the Legislature. Attorneys for the ACLU argued that strict scrutiny must be applied because a constitutional right, suffrage, was at stake. Meanwhile attorneys for the state argued the Legislature has the right to set elections in the manner it sees fit by both the United States and the Montana constitutions.


Same Day Voting


The four laws being challenged have been the subject of debate since they were first introduced. House Bill 176 eliminated same-day, or Election Day, registration for voters, moving it to noon of the day before the election. Voting-rights organizations have argued this unduly affects Native American voters who, on average, live farther away from election offices and could wind up needing to make multiple trips to vote, instead of registering and voting on Election Day.

“Article IV, Section 3 (of the Montana Constitution) does not include voting in the most convenient way,” Semmens said.

He pointed out that in 1972, framers of the constitution had set a 40-day registration window for voters and specifically opted not to include Election Day registration as proof that it should be left up to lawmakers to decide the specific issues of registration.

Moses questioned Semmens about why the Legislature could ignore the will of the voters, who overwhelmingly approved same-day election registration.

Semmens said it comes down to trying to balance the workload of rural election officials by “making the smallest change possible.”

Alex Rate, legal director for Montana’s ACLU, told the court that Native Americans disproportionately use same-day registration when compared to other groups, and that in 2018 and 2020, more than 800 Indigenous people used it. And overall, 5 percent of voting takes place through same-day voting.


University identification


Senate Bill 169 eliminated university-issued student identification as an acceptable form of identification for voter registration.

Moses’ questioning focused on whether there was a documented problem with university issued identification.

“If there is no proof that there was ever a problem or if none existed, why did anyone do anything? Why would you burden the voters if you didn’t have a problem,” Moses asked, calling the state’s argument a double-edged sword.

Semmens argued the Legislature has the responsibility of guarding against fraud proactively.

“The plaintiffs in this case seem to reject anything that changes law, making the law a one-way ratchet that can only make it easier,” Semmens said.

Attorney Matthew Gordon argued on behalf of the plaintiffs that the change doesn’t make sense, though. When the lawmakers opted not to use the student-issued identification, but allowed a concealed carry permit, Gordon pointed out almost identical documentation requirements for both.

He also pointed out that expired driver’s licenses were acceptable, and that non-citizens can get concealed carry permits or driver’s licenses.


Ballot collection


House Bill 530 prohibits ballot collectors from being paid, which voting rights advocates argue also discriminates against poor, elderly or disabled Montanans who may not be able to travel to vote.

Attorney Lars Phillips, representing Jacobsen, told the court that while every qualified resident has the right to vote, that right doesn’t mean the right to an absentee ballot or the ballot being collected.

“This is a slippery slope the plaintiffs are taking us down. That if you testify in opposition to a bill in the Legislature, that can be the basis of a discriminatory intent by simply objecting to it,” Phillips said. “The idea that you have a fundamental right for someone to pick up your ballot is a push too far.”

He said the basis for the Legislature proposing the law is rooted in Montana’s interest in controlling money in politics. He said that paying people to collect ballots is a dangerous route because of where the money may come from.

A law passed previously by the Legislature, the Ballot Interference Protection Act, was a similar measure struck down by fellow Yellowstone County District Court Judge Jessica Fehr, who ruled that prohibiting ballot collection was part of the exercise of political speech via the ballot and ran contrary to the state’s constitution.

“This manufacturing of government interest rests upon sowing seeds of doubt,” said the ACLU’s Rate.

Calling them “post-hoc” rationalizations, Gordon said that Jacobsen has created a cover for the Legislature to create and enact more restrictive laws by ginning up a narrative of cratering confidence in Montana’s election. But he accused attorneys for the state of having to go to the state historical society to even find cases of election fraud.

“This claim of crisis in voters doesn’t exist, and it’s not because of the tens of thousands of votes on Election Day. That’s not why this exists,” Gordon said. “It’s the result of spreading lies and disinformation about the 2020 Election. They’ve manufactured this crisis to implement these laws.”


17- and 18-year-olds


House Bill 506 changes the way voters who turn 18 after ballots are sent out but before Election Day can receive their ballot, which voting rights advocates say is unconstitutional because it treats those eligible to vote in a different way.

Voters who will be 18 by Election Day, but who haven’t yet turned 18 by the time ballots go out, are not allowed to receive a ballot, according HB506. On behalf of the plaintiffs, attorney Rylee Sommers Flanagan told Moses that their votes are equal and should be treated like any other absentee ballot, and only adds confusion to the law.



JULY 11, 2022

 Big Medicine, a sacred white bison, who lived his entire life from 1933 to 1959 on the National Bison Range. Today, he’s on display at the Montana History Center in Helena (Photo by Darrell Ehrlick of the Daily Montanan).


When Congress passed and President Donald J. Trump signed into law the legislation that would restore the National Bison Range to the Confederated Salish and Kootenai tribes, it marked a homecoming of sorts as the land, the operations and the bison were returned to tribal management.

Now, Native leaders throughout the state need one more thing returned, Big Medicine.

Big Medicine is the name given a white bison calf born on the range in 1933. Not an albino, Big Medicine had a mostly white coat with a tuft of brown that sometimes appeared near his horns. Many Indigenous cultures, including the Salish and Kootenai, regarded the birth as an omen of good fortune and renewed hope, and Big Medicine was kept alive on the range for 26 years, nearly triple the age of the average bull bison.

Since his death in 1959, Big Medicine has been housed at the Montana State Historical Society in Helena. The display is right across from the archives on the second floor, and he remains one of the most popular attractions for Native and non-Natives alike.

However, the Montana Native American Caucus has supported the effort by the CSKT to bring Big Medicine home, back to where he lived, to be a part of a planned museum and interpretative center.

Molly Kruckenberg, the executive director of the historical society, said that while the decision to return Big Medicine to the CSKT is in the hands of the society’s board of trustees, she said staff generally support the effort so long as the animal, which is in somewhat fragile condition, can be returned safely and preserved for the next generation of Montanans and tourists.


Showing its age


When Big Medicine died in 1959, the hide went for preservation. Kruckenberg said that techniques used in 1960 were more primitive, and in some cases, more destructive, than those used today. Big Medicine was restored again in 2000, and a 2007 conservation assessment revealed that the hide was “fragile.”

Some of the blame rests with the conservation techniques available in the late 1950s, while the other factor was biological.

“He outlived all of his herd,” Kruckenberg said. “But that meant his hide was in rough shape.”

 A close-up picture of Big Medicine, a true white bison which lived at the National Bison Range. He had blue eyes and brown tuft of hair between his horns. Big Medicine is currently on display at the Montana History Center in Helena (Photo by Darrell Ehrlick of the Daily Montanan).


On the second floor in Helena, he’s out of sunlight and out of reach of many. They occasionally have requests to hold a smudge ceremony or burn sweetgrass to honor Big Medicine, and Kruckenberg said most of those are accommodated.

Eve Byron, public information officer, said the most frequently asked questions of visitors includes, “Where’s Big Medicine?”

“We recognize where the Native leaders and the CSKT want Big Medicine. We’re open to having that conversation,” Kruckenberg said. “Our primary and exclusive concern is in the long-term preservation of Big Medicine.”

Some of those efforts at preserving Big Medicine were primitive, including the use of arsenic. And the understructure built to support the hide is now pushing 60 years old itself.

“He speaks to the idea of the West. He is a bison and not just spiritually unique,” Kruckenberg said. “Kids come in and ask, ‘Where’s Big Medicine?’”


Past, present, future


Tom McDonald, chairman of the Confederate Salish and Kootenai tribes, said the focus on Big Medicine isn’t just about the past or even the present, but also about the future.

“He inspired our people, and he represents hope for the future and positive things,” McDonald said. “If you think about when he came and the tough times that they lived through, it was seen a sign of renewal.”

Until the bison and the bison range were returned to the tribe, McDonald admits, there would have been few places to store and preserve Big Medicine. However, since the return of the National Bison Range, it opens up the possibility of Big Medicine coming home.

“We want him to be at the place where he lived and where he was born,” McDonald said.

With plans for a new museum and exhibit center, McDonald hopes Big Medicine’s return will be a matter of time. Because the range and the center will be near U.S. Highway 93, a popular route for getting to Glacier National Park, McDonald is convinced more people –not fewer—will visit Big Medicine.

“We want to design it for him in mind,” McDonald said. “He came forward after World War I and a lot of things that were of tremendous importance happened and to have him show up as a sign of revitalization, and it give us a sense of place where we can think about the place that we value and restore those cultural values.”

Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.


JULY 8, 2022

 Flooding on the 9th St. Island in Livingston. Credit: Frank James


Gov. Greg Gianforte announced Thursday the state successfully added three additional counties to the presidential major disaster declaration for Montana: Yellowstone, Treasure, and Sweet Grass. Six counties in southern Montana are now eligible for aid through FEMA’s Public Assistance Program.

“I appreciate Administrator Deanne Criswell and her team at FEMA for approving the state’s request to add Sweet Grass, Yellowstone and Treasure counties to the presidential major disaster declaration for Montana,” Gov. Gianforte said in a statement. “This assistance will further help our communities along the Yellowstone River recover and rebuild from recent flooding.”

On June 16, 2022, Gianforte announced the state secured a major disaster declaration from President Biden for severe flooding. The initial declaration applied to Park, Stillwater, and Carbon counties.

Over the last several weeks, the state has been gathering data to add additional Montana counties to the presidential major disaster declaration, according to the news release from the Governor’s Office. This week, FEMA approved the state’s request to add the three additional counties to the declaration. 

The federal aid that accompanies the major disaster declaration supplements state and local resources being used to offset widespread damage caused by the flooding, the Governor’s Office said. Specifically, the FEMA Public Assistance Program provides supplemental federal grant assistance for debris removal and the restoration of disaster-damaged, publicly owned facilities, and specific facilities of certain private nonprofit organizations.