On Monday, October 6, 2008, the Montana Democratic Party and plaintiffs Joseph Breitenbach and Cynthia Anne Green filed a five count complaint in US federal court seeking declaratory relief and temporary and permanent injunctive relief to deem void and compel withdrawal of the meritless, unprecedented and illegal challenges to more than 6,000 Montana voters, and to direct the Secretary of State to comply with federal law.
On September 29, 2008, just 35 days prior to the November 4, 2008 general election, the Montana Republican Party filed unprecedented and unlawful mass challenges against more than 6,000 registered Montana voters, including to Plaintiffs Breitenbach and Green, and many of the Montana Democratic Party's members and supporters.
As stated by John Bohlinger, MT Lieutenant Governor (and a republican), “Frank St. Pierre, of Anaconda, fought in World War II. He is one of the most decorated living veterans in America. And yet, on Wednesday, my party - the Montana Republican Party - tried to invalidate his voter registration because he lives in a county with a lot of Democrats. Incredible as this may sound to you, it is the truth. The legendary Frank St. Pierre, 86, who helped save thousands of allied troops at Dunkirk in World War II and has 10 Medals of Honor. St. Pierre moved from one end of town to the other, and the Republicans tried to void his and his wife's registrations. I have a copy of the signed affidavits from the Republicans, declaring that Frank and Marilyn St. Pierre's voter registrations must be purged. An utter disgrace. The list also includes Babe Aspholm, of Anaconda, an elderly man, simply moved across town from his house to a senior living center. The Republicans tried to void his registration. Tom Detonacour, a policeman from Deer Lodge County who simply bought a house in another county, also got targeted.”
http://www.mtstandard.com/articles/2008/10/05/opinion/hjjbijjejjigfj.txtThe list also included Kevin Furey, a former Montana Democratic state representative and Army Reserve officer who has been activated for duty in the Middle East. Furey, reached while visiting his grandmother in Chicago before he deploys to Kuwait, said Friday he had forwarded his mail from his Helena address to his parents in Missoula County. He is registered to vote at his Helena address. Furey said the challenge may affect many people in the military, and that it's "really egregious" if the challenges end up preventing members of the military from voting. “It is ironic that at the same time I am about to return to Iraq to help build a democracy, that my own right to vote is being challenged at home for partisan purposes," he said in a statement released earlier. "These challenges are a blatant and offensive attempt to suppress the rights of voters."
http://leftinthewest.com/showDiary.do?diaryId=2266As stated in the complaint, “the challenges were filed in traditionally Democratically leaning areas, including Missoula, Lewis & Clark, Deer Lodge, Silver Bow, Glacier, Hill, and Roosevelt counties. The Republican Defendants have stated publicly in news accounts that more challenges are planned. Absent action by this court, thousands of legitimately registered Montana voters will imminently be informed that their voting rights have been placed in jeopardy, injecting chaos into Montana's upcoming elections.”
These challenges were made after the Republican Defendants hired a third party, Integram (
http://www.integram.com/), to check the U.S Postal Service National Change of Address ("NCOA") database against the Montana's statewide voter registration database of legally registered electors.
The affidavits were notarized by Adam Jespersen and Karli Hill. Jespersen is the so-called "Special Projects" Director and Hill the so-called "Grass Roots" Director of the Montana Republican Party.
NCOA records are collected for the purpose of recording a change of mailing preference. They are not intended to reflect, and do not reflect a change in residence, for purposes of Montana statutory law or otherwise. Conversely, Montana law lists a variety of statutory criteria to determine the residency of an eligible elector; the location at which an individual prefers to receive mail is not one of the statutory criteria.
Accordingly, NCOA records may not alone serve as sufficient evidence of a change of residence to support or sustain a challenge under Montana or federal law.
Federal law prohibits all of these challenges. In order to avoid last-minute widespread purges of eligible citizens, within 90 days of a primary or general election for Federal office, the National Voter Registration Act of 1993 ("NVRA"), codified at 42 U.S.C. § 1973gg et seq., prohibits states from systematically reviewing the registration rolls for ineligible voters, except at the request for the registrant, or by reason of disenfranchising criminal conviction, mental incapacity, or death of the registrant. 42 U.S.C. § 1973gg-6(c)(2). Montana has codified certain provisions of the NVRA, including the 90-day prohibition on systematic review of voters' registration status, at § 13-2-220(3), MCA.
The NVRA also prohibits states from removing the name of a registrant from the official list of eligible voters on the ground that the registrant has changed residence, unless the registrant confirms the change of residence in writing, or fails to vote for two general election cycles after receiving a specifically delineated forwardable federal notice. 42 U.S.C. sec 1973gg-6(d). The NVRA carefully regulates the use of NCOA data in this context, permitting the data to be used only in the context of the procedure above. 42 U.S.C. S; 1973gg-6(c). The Montana Secretary of State has promulgated rules to the same effect, prohibiting county election officials from using the NCOA data for purposes of evaluating the registration status of a voter within 90 days of a primary of general election for federal office. S; ARM 44.3.2014.
Why is Brad Johnson, MT Secretary of State, a defendant? From the Complaint, “On the afternoon of Friday, October 3,2008, two days after Hill County started sending letters to challenged voters, Defendant Johnson finally provided formal guidance to the counties ‘that may help you to process any challenge to a voter's registration.’ Nowhere in this guidance does Defendant Johnson provide any means to resolve challenges that are unlawful when issued, without causing undue confusion among the electors unlawfully challenged. The Republican Defendants' scheme to threaten voters' registration status using the challenge procedure provided by state law. and Defendant Johnson's failure to instruct county election officials that they are prohibited from undertaking a last-minute mass review of the rolls of voters, has called into question the status of the 6,000 plus challenged voters on the eve of the election. This is precisely what the NVRA seeks to prevent.”
Also from the Complaint: “On Monday October 6,2008, the so-called "early vote" also will begin, with individuals appearing to vote at early vote locations, many of them younger voters and students. There is a substantial likelihood that many of those who appear to vote will be included in the 6,000 plus challenged registrations. When these voters appear in counties across Montana to exercise their franchise, the Republicans Defendants' unlawful challenges will force them to present additional verification of their status as legally registered voters under Montana law. Some challenged voters will be required to take significant steps-such as drafting, notarizing (paying the associated costs) and submitting a sworn affidavit--or forgo their ability to cast a regular ballot. There is a substantial likelihood that the consequent confusion will cause unnecessary lines at the polls, deterring some electors entirely, including members and supporters of Plaintiff Montana Democratic Party.”
THE TEETH OF THE COMPLAINT:
COUNT 1: Violation of the National Voter Registration Act, 42 USC sec 1973gg et seq. - as discussed above, it prohibits states from executing, later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters, except at the request for the registrant, or by reason of disenfranchising criminal conviction, mental incapacity, or death of the registrant.
COUNT 2: Violation of the Equal Protection Clause of the Fourteenth Amendment - The Equal Protection clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process. The right to vote is protected in more than the initial allocation of the franchise. Equal Protection applies to the manner of its exercise as well. Thus, a state may not value one person's vote over that of another.
On information and belief, Montana counties are responding in a disparate and arbitrary manner to the Republican Defendants' mass challenges, with some counties placing additional burdens on voters to exercise their franchise, other counties rejecting certain challenges but not others as void ab inrtio, and each county determining without any guidance when to inform legitimate voters that their rights have been challenged, and in what form. Defendant Johnson, is responsible for certifving the statewide voter registration list "immediately after regular registration is closed." MCA 5 13-2- 1 15. In the face of the Republican Defendants' scheme, well over 6,000 voters' registrations are now in jeopardy, precisely when the statewide voter registration list to be used in the November 4,2008 general election is to be certified. Absent relief from this Court, these legitimate voters reasonably fear that they may be dropped from the rolls on the eve of the election. The Republican Defendants' voter suppression scheme, absent sufficient uniform instruction from Defendant Johnson, threatens to accord disparate treatment of certain voters in certain counties over voters in other counties, in violation of the Equal Protection clause of the 14" Amendment. Moreover, it threatens to force an entire class of thousands of legally registered voters, overwhelmingly Democratic voters, from their legally registered status. This scheme, unless enjoined from further execution, will cause irreparable harm to the fundamental rights of the Montana Democratic Party, its members, Plaintiffs Breitenbach and Green, the Montana voting public, and the integrity of the voting process on November 4.
COUNT 3: Violation of 42 USC sec 1983 and the First and Fourteenth Amendments - By filing baseless and discriminatory challenges against Montana voters, the Republican Defendants have acted under color of state law to deprive Montana voters, including members and supporters of the Montana Democratic Party and Plaintiffs Breitenbach and Green, of their Constitutional rights. In exercising powers specifically conferred by Montana statute, through a process specifically delineated by Montana statute, the Republican Defendants and/or their agents act under color of state law when challenging a voter's eligibility to vote in advance of the general
election in Montana on November 4,2008. The Republican Defendants have jeopardized the voters' eligibility to vote based on unlawful challenges of voter registrations, including those of members of the Montana Democratic Party and Plaintiffs Breitenbach and Green. The Republican Defendants' challenge of the Montana voters' eligibility on the basis of unlawful challenges of voter registrations will place an undue burden on the fundamental rights of Plaintiffs in violation of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Absent injunctive relief, Plaintiffs are likely to suffer both the particularized injury of the loss of their vote in the November 4,2008 election and the concrete harms that go with it and the Plaintiffs are substantially likely to suffer impairment of their fundamental rights as a consequence.
COUNT 4: Violation of 42 USC sec 1985(3) - Section 1985(3) of Title 42 prohibits private parties from conspiring to deprive a class of voters of the equal protection of the laws and from conspiring to intimidate citizens who are lawfully entitled to vote from giving their support or advocacy in a legal manner in any election for Federal office. On information and belief, the Republicans Defendants knowingly filed affidavits asserting that legitimate voters no longer resided at the address where they were registered, with knowledge that they had no evidence to indicate that such voters no longer resided at the address where they were registered. On information and belief, the Republican Defendants intended by these mass challenges to intimidate lawfully registered citizens and to deprive such citizens of their right to vote in the November 4,2008 General Election. On information and belief, Defendant Eaton and Defendant Hunsaker, with or without the separate agreement of Defendant Montana Republican Party, entered into an agreement to intimidate and deny voters whose registrations have been unlawfully challenged their right to vote in the November 4,2008 General Election. These Defendants then undertook to act on that agreement by filing mass challenges to lawfully registered voters. The Republican Defendants singled out the class of voters whose registrations are being challenged, because they know that the voters residing in those counties, predominantly college students and Native Americans, generally and historically do not support Republican candidates. The Republican Defendants then filed challenges against those voters in furtherance of the conspiracy, depriving them of having and exercising a right or privilege of a citizen of the United States. The Republican Defendants have spoken publicly about their plans. with the intent of both creating a false impression that voters who receive notice of the challenge to their registration are not eligible to vote and of intimidating voters from showing up to vote. Those actions, just as Republican Defendants intended, have intimidated voters, including members of the Montana Democratic Party and Plaintiffs Breitenbach and Green and threaten to discourage them from performing their constitutionally protected rights.
COUNT 5: Violation of 42 USC sec 1971 - 42 USC 5 1971, provides that "No person. whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for. or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate." Upon information and belief. the defendants, acting under color of state law, have threatened and intimidated. and have stated their intention to further threaten and intimidate.
Montana voters, including members of the Montana Democratic Party and Plaintiffs Breitenbach and Green for the purpose of interfering with the voter's right to vote, in violation of 42 USC 5 1971 (b).
Will update!
Boondog
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