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Letter to Montana SOS Regarding Large-Scale Challenges in Six Counties

Letter urges the Secretary of State to reject challenges to 6,000 registered voters.

Published: October 5, 2008

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delivered by fax and email

Mr. Brad John­son
Secret­ary of State
Montana Office of the Secret­ary of State
1236 E. 6th Avenue
Helena, MT 59620–2801

Re: Large Scale Chal­lenges Made in Six Montana Counties

Dear Secret­ary John­son:

We write to urge the rejec­tion of chal­lenges made to 6,000 registered voters in Missoula, Butte-Silver Bow, Lewis and Clark, Deer­lodge, Glacier, and Hill counties and ask that you take imme­di­ate steps to ensure that those voters who have already been sent chal­lenge letters are not discour­aged from voting.

Based on the affi­davits filed, we under­stand that the chal­lenges at issue are based on name searches in the National Change of Address Data­base, and that the chal­lengers reques­ted that elec­tion offi­cials cancel the regis­tra­tions of the chal­lenged voters. Chal­lenges of this nature are both unre­li­able and unsup­por­ted under federal and state law.

First, purpor­ted discrep­an­cies between the statewide voter regis­tra­tion data­base and the National Change of Address Data­base are an insuf­fi­cient basis for conclud­ing that a voter has moved or is not eligible to vote at her regis­tra­tion address, and for depriving an eligible voter of the right to cast a ballot which will count. Such a search may turn up family members of indi­vidu­als who have moved who still reside at their regis­tra­tion address, indi­vidu­als who are voting resid­ents of their regis­tra­tion address but who are tempor­ar­ily stationed else­where (includ­ing soldiers and students), and indi­vidu­als with the same or similar names as those resid­ing at other addresses. As an example of the kinds of errors endemic to such a process, former Montana State Repres­ent­at­ive Kevin Furey, a First Lieu­ten­ant in the Army Reserves who is still eligible to vote at his regis­tra­tion address in Montana, is included on the chal­lenge list simply because he is currently in New Jersey prepar­ing to deploy to Iraq.

Second, recog­niz­ing the signi­fic­ant poten­tial for error in determ­in­ing which voters have moved from a juris­dic­tion, Congress protec­ted against these kinds of purges in the National Voter Regis­tra­tion Act of 1993 (“NVRA”). The NVRA prohib­its remov­ing a voter from the voter rolls on the basis of a change of address unless the voter either confirms in writ­ing a change of address outside the juris­dic­tion, or has failed to respond to a notice sent by the appro­pri­ate elec­tion office confirm­ing the voter’s address and fails to vote in two federal elec­tions, even, states the NVRA, “if it appears from inform­a­tion provided by the Postal Service that … a regis­trant has moved.” Further, the NVRA prohib­its the system­atic removal of voters from offi­cial lists of eligible voters within ninety days of an elec­tion. A chal­lenge to 6,000 voters, a month before the pres­id­en­tial elec­tion, where the result could be the cancel­la­tion of the elect­or’s regis­tra­tion, would run afoul of NVRA. Montana’s chal­lenge laws cannot be inter­preted to circum­vent protec­tions afforded to voters under federal law.

Third, there is little, if anything, in Montana’s elec­tion laws approv­ing chal­lenges of this nature. Montana’s chal­lenge laws do not support unsub­stan­ti­ated chal­lenges. Instead Montana’s chal­lenge laws limit the chal­lenges to certain grounds, and require an affi­davit and evid­ence of support.

Accord­ingly, we ask that you issue a direct­ive or instruc­tions to Montana’s county elec­tion offi­cials clari­fy­ing that chal­lenges based solely on discrep­an­cies between the statewide voter regis­tra­tion data­base and inform­a­tion from the National Change of Address data­base are to be rejec­ted without impos­ing burdens on the chal­lenged voters. We further ask that you instruct county offi­cials to cease send­ing chal­lenge letters to voters targeted for chal­lenges for this reason. To avoid discour­aging turn-out, voters who have already been sent such chal­lenge letters should be sent an addi­tional letter clearly indic­at­ing that the chal­lenge to their regis­tra­tion has been rejec­ted. County offi­cials should have educa­tional mater­i­als on hand, such as posters and fliers, provid­ing the same message.

As noted on the Secret­ary of State’s website, the right to vote is one of the most import­ant rights citizens enjoy. We would very much like to work with you to ensure that all Montana voters are able to parti­cip­ate in the upcom­ing elec­tion. Please call us at (212) 992–8648 if you have any ques­tions or if we can provide further assist­ance.


James J. Sample, Montana bar no. 7890

Myrna Pérez
Bren­nan Center for Justice

Vickie Zeier
Mary McMa­hon
Paul­ette DeHart
Marie Hatcher
Glenda Hall
Diane E Mellem