Judge Molloy Refuses TRO on GOP Voter Challenges But Sets Hearing Date

by jhwygirl

For those of you who might of missed it, the Montana Democratic Party and two individuals have filed suit in Federal Court seeking to restrain the GOP challenges to voters in Montana. While the Montana GOP has feebly withdrawn its challenges – Eaton wrote that the party launched the challenges in “good faith,” but media reports have since suggested the challenges were an effort to suppress voter turnout. – the lawsuit continues on.

Molloy issued his opinion yesterday (on the temporary restraining order), and boy, it’s worth a read. Plenty of it is great stuff – really. The first two pages take cynicism to a whole new level. Print it out – and make sure to leave a copy on your favorite Republican’s doorstop.

He really aims a good bit of his ire at Secretary of State Brad Johnson:

Also explained below, the Secretary of State’s “Challenge Resolution,” a review of statutes and administrative rules designed to help counties evaluate challenges like those at issue here, appears to create the potential for serious violations of state and federal law when a challenged elector offers to vote. See Pl. Ex. J. While, at this time, I find Plaintiffs’ arguments unpersuasive that the actions of the Montana Republican Party officials and the Secretary of State violate federal law and warrant immediate injunctive relief, the mischief Eaton has injected into Montana’s electoral process may have brought to light significant violations of state and federal law, and the consequences of these violations should not rest on the shoulders of citizens seeking to vote.

He goes on…

On the question of the State’s involvement, the pertinent document before the Court is the Secretary of State’s “Challenge Resolution.” Pl. Ex. J. To Mot. The Secretary’s Resolution is a review of statutes and administrative rules. Its stated purpose is “to review the statutes and rules that may help [county election officials] to resolve any challenge to a voter’s registration.”…These last two sentences of the guide present a critical problem.While Mont. Code Ann. § 13-1-112(8) states that a change of residence “may be made only by the act of removal joined with intent to remain in another place,” the Secretary of State’s instructions to county officials could be construed to require a voter challenged on the basis of change-of-address information to rebut a presumption of changed residence with “proof of intent to remain at the registration residence[.]”…While the Secretary’s Resolution seems to echo this conclusion when it says that “a postal change of address form by itself is insufficient to cancel the registration,” the apparent certainty of this instruction is undermined by the next phrase, “especially of an elector who confirms his residence in the voting process.” A voter cannot be required to confirm his or her address under these circumstances. The elector must be allowed to vote by regular ballot, or there is a violation of the National Voter Registration Act.

And finally, the kicker:

The process the Secretary’s Resolution prescribes for evaluating the three “Categories of Challenged Electors” further confuses the State’s response to challenges like those Eaton filed against the 6,000 Montana voters. It is not clear, from the plain language of the Secretary of State’s instructions, whether an election administrator has discretion to deny an elector the opportunity to vote because of a challenge based on change-of-address information, or whether an election administrator must allow the challenged elector to vote. For example, for the “first category” of challenged electors – i.e., electors a challenger claims filled out hange-of-address forms for an in-county address change, but whose postal addresses allegedly do not match the residence addresses on file with the county – the Resolution states a county official reviewing the challenge “may . . . determine . . . that the challenge should be resolved in the elector’s favor.” The use of the word “may” indicates that the county official has discretion to accept or reject the challenge. Such an interpretation of the law is wrong. Anything other than an unqualified rejection of the challenge would violate federal law.

In other words, Secretary of State Brad Johnson doesn’t appear capable of running an election and may be – we won’t know until Molloy’s final ruling, but the early stuff sure is telling – violating federal law as he attempts to do so.

(That all was apparently missed by Missoulian State Bureau reporter Jennifer McKee. She speaks of Johnson having “effectively alleviated a crisis that would have required a restraining order.” Gee, I missed that part….)

October 14th, 9 a.m. I don’t think popcorn is appropriate, but it’ll undoubtedly be worth sitting through, if only to see Secretary of State Brad Johnson defend himself.

I wonder if the taxpayers will be picking up the tab on that? You know, like how they’re stuck picking up the tab on the extra county workers and county attorney time spent on the Republican GOP’s worthless challenges?

And kinda how we’ll be picking up the tab on this current U.S. District Court case?

  1. JC

    This is one of my favorite quotes:

    “The responsibility for preventing such a cynical use of state law by a private citizen or political party lies with the voters

    And a rallying cry it shall become!

  2. read the whole thing- talk about a dressing down. Holy crispy. just a tip for Jake- white shirts don’t show the pit spot quite as bad.
    wish i could be there to watch mr eaton and mr johnson squirm. that is one angry judge. guess jimmy stewart does win sometimes.

  1. 1 Judge Donald Malloy 1, Jake Eaton 0 | Intelligent Discontent

    […] From jhwygirl, is Brad Johnson qualified to do his job? Related Posts:A Question I Would Ask Jake Eaton If I Worked for a NewspaperWhy Does Jake Eaton […]

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