Fri. Jan 27th, 2023

Political experts who study how and why people vote exchanged academic fire last week, as they took the witness stand in a trial to determine whether several new changes to Montana’s election laws pass constitutional muster.

The trial, which ended in Yellowstone County District Court last week after nine days, consisted of hours of testimony from election officials, politicians, activists and academics discussing the controversial new laws.

Nearly a dozen plaintiffs, including the Montana Democratic Party, are alleging that the GOP-backed changes to voting laws will disproportionately lower turnout for Native Americans, college students and other groups of voters. The laws, they argue, discriminate on the basis of age and race, and violate a number of rights enshrined in the state constitution.

A pair of experts hired by plaintiffs in the case compiled reports indicating that laws ending Election Day voter registration, tightening photo ID requirements at the polls and restricting third-party ballot collection would depress voter turnout.

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Kenneth Mayer, a political science professor at the University of Wisconsin-Madison, said during his testimony last week that his analysis found “all three of these changes increase the cost of voting and result in otherwise eligible voters not being able to vote.”

The sole defendant in the case — Secretary of State Christi Jacobsen — has argued that the laws were passed to reduce the chances of voter fraud occurring and to improve voter confidence in the elections. And ending Election Day registration, her attorneys have argued, would decrease the administrative burden on election officials busy with myriad other tasks on Election Day.

Mayer’s report found no evidence of fraud in Montana’s recent history that would have been prevented by the laws, which he called “pure dead weight” that will only make it harder for people to vote.

Mayer analyzed voter files and other data from the Secretary of State’s office, finding that 52,000, or more than 7% of registered voters in Montana had used Election Day registration at least once since 2008.

He concluded that voters who used Election Day registration were 33 years old, on average, compared with Montana’s average voter age of 55. Voters aged 18 to 24 are three times more likely to use that service, he said.

“These are lower-propensity voters,” Mayer testified. “… They have more mobile residences, they move more often, students are going to college, will have moved, they’re less familiar with the processes and requirements of voting. It makes complete sense that younger voters would be more likely to rely on Election Day registration than older voters.”

The law, which moved the registration deadline to noon on the Monday before Election Day, would reduce turnout by an estimated 1.4% in an average general election, Mayer said.

The defense argued repeatedly that changing the registration deadline, along with voter ID requirements and ballot collection restrictions, would result in voters changing their behavior to comply with the laws.

“We have a lot of voting laws where you need to follow the law,” said Sen. Greg Hertz, R-Polson, the only lawmaker called to testify by the defense. “… Whether it’s absentee ballots, whether it’s voter registration, whether it’s voting in person, it’s the responsibility of the voter to understand those laws and do what they need to do.”

Roughly two-thirds of the nine-day trial was dedicated to witnesses called by the plaintiffs. The defense concentrated primarily on testimony from election officials, who testified that ending Election Day registration would likely grant them some relief on Election Day.

However, they did call one of their expert witnesses, Trende, a scholar at the American Enterprise Institute, a conservative think tank. His report argued that expert reports put forth by the plaintiffs failed to establish a cause-and-effect relationship between turnout and similar laws passed elsewhere in the U.S. Most academic work in political science uses observational data, which is generally harder to draw causal conclusions from than experimental data.

“The concern with observational data is when you try to cross the line into a causal relationship … you have to make some really strong assumptions about your ability to control for everything,” Trende said during his Aug. 24 testimony.

While he didn’t develop any original analysis of how the laws would affect voters in Montana, Trende’s report focused in particular on studies of Election Day registration and same-day registration. While many studies found a link between those practices and higher turnout, he found that in some cases the link was weak and failed to determine cause and effect.

Trende’s review of academic studies on the impact of laws requiring photo ID to vote found mixed results, and he wrote that much of the literature is devoted to states with stricter requirements.

He also noted that compared with most other states, voting remains relatively easy in Montana. The Treasure State maintains a lengthy late-registration period leading up to Election Day, he noted, along with expansive absentee voting opportunities.

“The suggestion that these laws will have a substantial impact on turnout, if any, is unsupported by the literature,” he wrote in his conclusion.

Theresa Lee, an attorney for the plaintiffs, peppered Trende with a lengthy series of questions suggesting he lacked the qualifications to weigh in on the subject. She noted that Trende lacked a doctorate degree, had never published a peer-reviewed article at the time he wrote his reports for the case and has never served on the board of a peer-reviewed journal — an apparent attempt to contrast his credentials with the plaintiffs’ experts.

On the witness stand, Trende acknowledged there is “some sort of inverse relationship between costs of voting and the decision to vote,” but reiterated his conclusion that the relationship is weaker than the plaintiffs’ experts have argued.

Lee also noted that Trende’s report didn’t address the frameworks that Mayer’s analysis relied on, or the code he used to run his statistical analysis. She also noted that his report didn’t include research related to the voting experience of Native Americans on reservations.

The defense didn’t call their other expert witness, Scott Gessler, to testify. But the plaintiffs used a later cross-examination to draw attention to Gessler’s embrace of the falsehood that President Joe Biden was not legitimately elected.

A former Colorado Secretary of State, Gessler stated during a public forum in March 2021, “I think there’s a very high likelihood the election was stolen from Trump in Nevada” and referred to “huge problems nationally,” the Colorado Sun reported.

Despite a proliferation of unsubstantiated theories alleging that Biden’s victory was illegitimate, no evidence has emerged of widespread or coordinated attempts to commit election fraud during the 2020 presidential election.

Gessler’s report focused in large part on his conclusions about voter behavior, based on his own opinions and prior experience with election systems. His experience includes more than a decade as an attorney working “primarily in the area of election law,” and teaching election law at the University of Denver and the University of Colorado.

Like Trende, he didn’t develop any original statistical analysis of the potential impacts of the trio of election laws, but reviewed some of the academic literature on the subject.

Moving the registration deadline back from Election Day, he wrote, “provides election administrators and workers adequate time to process voter registration applications. In my two decades of involvement in elections, Election Day is by far the busiest day of the election cycle.”

He also cites the testimony provided by other defense witnesses — including election administrators from Flathead, Broadwater and Fergus counties — supporting his conclusion that ending Election Day registration will ease a significant burden on election workers.

“It interrupts the flow of whatever we’re doing,” former Broadwater County Clerk and Recorder Doug Ellis testified. “… You have to stop that, register the voter, get them into MontanaVotes (the state’s voter database), issue them a ballot … It takes your mind and your ability to do anything on the election away, until you’ve taken care of that voter.”



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