Secretary of State files 3 political complaints against organizations which defeated her in court

Montana Secretary of State Christi Jacobsen has filed formal complaints against three Montana organizations for what her office says are violations of Montana law when it comes to voter registration. However, those three organizations are among the organizations that successfully sued Jacobsen for three voter laws that have been ruled unlawful, and they say the complaints are retaliation.

In separate but similar filings through the state’s Commissioner of Political Practices, Jacobsen accuses the American Civil Liberties Union, Montana Public Interest Research Group and Forward Montana of advising residents who are registering to vote to send the registration documents to some other address than the local county elections office, as mandated by Montana law.

Montana law said that ballots and voter registration must not be mailed to anywhere but the local county elections office. Moreover, the law said that organizations cannot advise residents to send either ballots or registration elsewhere.

All three groups responded Monday, saying that not only should the complaints be dismissed, but asked Commissioner Jeff Mangan to assess fees against Jacobsen for bringing meritless complaints they said are retaliation “for its participation in the recent lawsuit.”

Moreover, they said the challenge at the commissioner of political practices may also be payback for a recent incident in which Jacobsen had outdated information on the website that did not reflect the reality of the recent court decision. Attorney Rylee Sommers Flanagan and Niki Zupanic, who are representing Forward Montana and Montana PIRG, said that they had to threaten Jacobsen’s office with a temporary restraining last week in order to have her correct information about Election Day Registration and accurate summaries of the identification that can be used at the polls.

Jacobsen filed the complaints against the groups on Oct. 20.

However, in a letter provided by the Secretary of State’s Office on Monday to the Daily Montanan, state elections director Dana Corson defended the office’s decision, saying it has no power to investigate concerns of election security, and is ordered by state law to turn them over to the commissioner’s office.

“The Secretary of State’s Office and the Commissioner of Political Practices have a shared responsibility to ensure the integrity of elections,” a letter to Mangan’s office sent today. “As you know … (Montana law) notes ‘the commissioner is responsible for investigating all of the alleged elections laws in Chapter 35.’ The secretary does not have the same authority.”

Jacobsen claims the three groups all recommended sending voter registration materials to somewhere other than the respective county elections office. Jacobsen said those activities violate state law.

“With the proximity to the election, the activity ongoing, and the number of violations continue to increase, it is of paramount importance that your office promptly issues a sufficiency finding and sufficiency determination,” said the complaint which was also signed by Corson, the state election director.

However, Montana law does not prohibit collectors from having a collection box for voter registration so that it can be delivered to the respective county elections office.

IN ITS complaint against Montana PIRG, Jacobsen’s office provides an online screenshot of instructions from the organization which tell residents to send materials to PIRG so it can check for registration completeness.

However, the organization, which focuses on registering young voters, said directing voters to send information to them was a one-day occurrence and nothing was sent to them. In addition, Montana PIRG had dealt with and corrected the issue weeks before the complaint was brought.

In its response, Montana PIRG, through its attorneys, said that on Sept. 28, Mangan contacted the organization about information that was on its website which instructed voter registration be returned to Montana PIRG.

In email communications obtained by the Daily Montana through a public records request, the organization changed the information, and checked the only drop box that had been established by Montana PIRG. No voter registrations had been received. Mangan’s office reached out to the Secretary of State’s Office to let them know the problem had been rectified.

“The Secretary made no attempt to reach out to MontPIRG to express concern or to otherwise indicate any other issue associated with the miscommunication,” the response said.

Jacobsen’s office acknowledged the additional information, but said it’s proper to make sure Mangan’s office searches out reports of fraud through its investigatory powers.

“It is recognized and appreciated that MontPIRG acknowledged and rectified the violation when contacted,” Jacobsen said. “If the commissioner chooses to document that the violation occurred and it was promptly addressed by the party as findings without any additional recourse, SOS would be satisfied.”

THE COMPLAINT from Jacobsen’s office about the ACLU appears to center on an email written by Big Horn County Elections Administrator Dulcie Bear Don’t Walk, who wrote to state elections officials that several people had complained to her office, alleging that the ACLU had told voters to send registrations or ballots to them.

However, the email by Bear Don’t Walk failed to name any source or the number of residents who complained. In a follow-up letter sent on Monday, the Secretary of State’s office said three different elections administrators in three different counties.

Attorney Raph Graybill, who represents the ACLU, sent all the voter communications the organization has distributed in Montana along with its response.

“Nothing in the mailings – not the registration forms, the cover letters, or the blank return envelopes – instructs applicants to send registration forms to the ACLU,” Graybill wrote. “The Secretary does not appear to have undertaken any informal clarification or verification of the matters described in the clerk’s email. She does not provide any follow up communications she had with the clerk, despite her statutory responsibilities for election administration.

“And the Secretary did not contact the ACLU for clarification before filing; if she had, she would have learned that the ACLU’s mailings are entirely consistent with Montana law.”

In the complaint about Forward Montana, Jacobsen’s office provided a photo of what appears to be a collection box and the business card of a field organizer in Billings.

Ballot collection is legal in the state, and Sommers Flanagan detailed the specifics of the group’s activity.

“Forward Montana Foundation staff and volunteers monitor these drop boxes and either mail or hand deliver applications to correct county election offices. For each drop box, Forward Montana Foundation staff tracks the number of applications received and the date they are delivered to election offices,” the reply said. “Indeed, the complaint fails to give notice of the particular conduct that is or could be the subject of the complaint, leaving Forward Montana and Forward Montana Foundation guessing as to whether any concern exists that they could address.”

Likewise, Jacobsen’s office said it had received the additional information from the ACLU, but believes only Mangan, as the commissioner, can resolve the situation.

“SOS also acknowledges the supplemental information provided by ACLUS may assist the commissioner in dismissing the complaint if upon investigation of the matter, no additional information to the contrary is found,” said Corson’s letter.

ATTORNEYS FOR the group urged Mangan to fine the Secretary of State for using the complaint process as retaliation.

Moreover, their responses each claim that no communication by Jacobsen’s office was given, and the complaints were filed after several had threatened to sue because a voter information pamphlet published by the state had incorrect information.

Further, they noted that in two of the complaints, Jacobsen had presented no evidence of a violation, and even in the third, the complaint had been addressed by Mangan’s office prior to the complaint.

“The Secretary should not be allowed to abuse the complaint process in this manner,” Sommers Flanagan said. “Even meritless complaints that are resolved quickly expend taxpayer time and resources and undermine the legitimacy of the process.”

However, Jacobsen’s office on Monday denied the allegations of politicking.

“The Secretary of State is disappointed to see the response from the attorneys representing (the groups) regarding (their complaints),” the letter said, characterizing them as “politization of the ministerial state government process of referring complaints to the proper authority.”

The ACLU also said that in addition to its materials conforming to state law, they also charge Jacobsen with playing politics, noting that the office had Bear Don’t Walk’s email for weeks before filing the complaint.

“It was only on the heels of these developments in the voter suppression litigation that the Secretary filed her complaint,” Graybill wrote.

In addition to agreeing to correct information that was distributed by her office about the upcoming election, Jacobsen’s office is also under fire from physicians who say that information in the pamphlet mischaracterized medical information about Legislative Referendum 131, the “Born Alive” protection act.

“While the active litigation related to Montana’s voting identification and registration deadline involves the subject organizations, or affiliates, as parties, the office’s referral has absolutely nothing to do with the fact that the organizations are parties in the proceeding,” Corson’s letter said. “While we dispute the narrative included in their response, we see no need to address it in this improper forum.”

Darrell Ehrlick is the editor-in-chief of the Daily Montanan. To read the article as originally published, click here.