1 October 2022 — 1706 mdt
But a state senator gets hammered
Montana District Judge pays compliment to the
Montana Democratic Party’s data director
By James Conner
Yesterday, District Judge Michael Moses handed down his 199-page decision holding that three bills affecting Montana elections passed by the 2021 legislature were unconstitutional and permanently enjoined from being enforced. See Sam Wilson’s preliminary report at the Helena Independent Record for further details.
Moses’ decision, which surely will be appealed to Montana’s supreme court, establishes an extraordinarily detailed finding of fact. And it characterizes the quality of certain witnesses that testified in the bench trial.
I’m still working through the decision, but I’d like to share with you the judge’s characterization of the testimony of Jacob Hopkins, the data specialist for the Montana Democratic Party. I’m acquainted with some of Hopkins’ work, and have been impressed with its sophistication and quality. His skills could earn him high dollars at a private data corporation. Here’s what Moses said (page 58) about his testimony:
172. Jacob Hopkins is the data director of MDP [Montana Democratic Party]. Aug. 19, 2022, Trial Tr. 1179:16-17 (Hopkins). Mr. Hopkins testified regarding the impacts the challenged restrictions have had, and will continue to have, on the operations of MDP. Id. at 1180:3- 5 (Hopkins). As data director, Mr. Hopkins analyzes data to enable MDP to run efficient campaigns. Id. at 1180:19-22 (Hopkins). Mr. Hopkins’s familiarity with voter data gives him more insight than a typical campaign staffer. Id. at 1193:25-1195:2 (Hopkins). He has insight into how different counties process ballots, see, e.g., id. at 1194:25-1195:2 (Hopkins), certain voter behaviors, see e.g., id. at 1195:7-11 (Hopkins), and voter demographics, see, e.g., id. at 1195:17-21 (Hopkins). In his role as data director, Mr. Hopkins also has familiarity with MDP’s election-related activities, as well as MPD’s general mission. Id. at 1181:14-18 (Hopkins). Prior to becoming the data director of MDP, Mr. Hopkins worked as a field organizer for various democratic campaigns. Id. at 1181:7-13 (Hopkins). Mr. Hopkins testified competently and reliably.
Compare that with Moses’ characterization of the testimony of Republican State Senator Greg Hertz (SD-6, Polson-Kalispell).
188. Gregory Hertz is a state senator representing Senate District 6. Aug. 24, 2022, Trial Tr. 1801:6-9 (Hertz). Senator Hertz characterized the enactments of HB 176, SB 169, and HB 530 as “preventative measures.” Id. at 1824:18-22 (Hertz). However, Senator Hertz also testified that Montana has a long history of secure and transparent elections. Id. at 1828:14-16 (Hertz). Senator Hertz believes that the best legislation is “thought out, vetted and has input from all stakeholders.” Id. at 1833:3-9 (Hertz).
189. However, when considering elections-related legislation, Senator Hertz never consulted with any elections administrators, id. at 1841:2-8 (Hertz), does not recall if any constituents contacted him to raise concerns about voter fraud, id. at 1842:9-13 (Hertz), and did not conduct any surveys or polls of his constituents regarding the challenged laws, id. at 1842:23-1843:5 (Hertz). HB 530, § 2, in particular, received zero input from stakeholders because, with Senator Hertz’ support, it was blasted to the Senate floor where there was no opportunity for public input. PTX126; Aug. 24, 2022, Trial Tr. 1887:17-24 (Hertz).
190. Senator Hertz believes HB 530, § 2 is a “good bill” but has never read any of the court opinions holding that a prior restriction on ballot collection was unconstitutional. Id. at 1909:4-12 (Hertz). In supporting HB 176 and SB 169, Senator Hertz disregarded overwhelming public opposition to those bills. Id. at 1850:8-11, 1852:5-12 (Hertz). Senator Hertz testified that he believes that student identifications are inadequate for purposes of demonstrating that a voter lives in a particular voting district in Montana. Id. at 1864:16-1866:2 (Hertz). However, he acknowledged that multiple other forms of primary identification likewise do not contain a voter’s address. Id. at 1866:3-1868:2 (Hertz).
191. Senator Hertz testified that he supported HB 530, § 2 out of concern that payment for ballot collection might incentivize individuals to collect more ballots. Id. at 1873:24-1874:3 (Hertz). But, Senator Hertz admitted that he was unaware that the Plaintiff organizations do not pay ballot collectors per ballot. Id. at 1874:9-15 (Hertz). Senator Hertz also believes that a salaried employee collecting ballots, or a volunteer who collects ballots but receives a gas card to cover expenses, is engaging in ballot collection in exchange for a pecuniary benefit. Id. at 1888:19-1889:3 (Hertz). Senator Hertz’ testimony is neither competent nor credible: while he has publicly proclaimed that court cases should be decided on “facts, not feelings,” id. at 1899:3-5 (Hertz), he admits that his support for the challenged laws is based on “just [his] feelings.” Id. at 1899:9-15 (Hertz).
Hoo, Boy! Wowza! Lord have mercy on Sen. Hertz.
That towering column of steam you see boiling above Polson is generated by Hertz’s contemplation of Judge Moses’s decision. Moses should keep on eye peeled on what that Hertz does in the 2023 legislative session. Politicians who get hammered that hard by a court miss no opportunity to return the favor.