Montana SOS denies turning over confidential records to feds

Montana Secretary of State Christi Jacobsen provided public voter records to the U.S. Department of Justice, but her office said it has not provided confidential information the DOJ requested.

The Secretary of State’s Office denied turning over confidential information in a recent letter to a news outlet and an earlier email to the Daily Montanan, and it described providing public records in a letter to the DOJ.

However, the extent to which the Secretary of State has cooperated with the Trump administration has raised concern among some legislators as Jacobsen refuses to answer questions about the records her office released.

The U.S. Department of Justice has said it needs to review the voter records to be sure states aren’t keeping ineligible voters on the lists and has argued it has the legal authority to have them.

Public voter rolls are available, and they include names, addresses, and where and how a person votes (by mail ballot or in person).

But the Department of Justice has pressed states, including Montana, for full voter rolls, which include partial Social Security numbers and driver’s license numbers.

The Trump administration’s push for the information has caused alarm from democracy watchdogs, and the lack of communication from Jacobsen means Montanans still don’t know how the Secretary of State has treated their personal data.

“The buck stops with her, and the public has a right to know what’s going on,” said Rep. Mary Caferro, D-Helena.

‘Additional information’

At the end of July, the Secretary of State provided a voter list to the DOJ, but in August, the DOJ said it needed “all fields,” including full names, dates of birth, driver’s licenses or the last four digits of a Social Security number, according to records posted on the Brennan Center for Justice website.

Based at New York University School of Law, the Brennan Center is tracking states’ responses to requests from the Department of Justice for full voter rolls.

In a Dec. 29 letter to the DOJ, the Secretary of State said it had attached another copy of the state’s public statewide voter list. However, the letter also said it included “additional information” pertinent to federal code.

Jacobsen’s office did not answer a question last week about what “additional information” it provided, and the Secretary of State’s Office has been largely unresponsive for months to questions about the DOJ’s quest for records.

In August, the Daily Montanan requested any communication from the DOJ to the Secretary of State regarding voter records, along with what information the agency considered to be public and how it weighed privacy.

In September, in response to follow up emails from the Daily Montanan, the Secretary of State said it had not released confidential records. However, it has not elaborated on or described the records provided.

“The Secretary of State’s Office has cooperated with (the) Justice Department and law enforcement requests for publicly available information and has never provided confidential information to anyone,” Secretary of State spokesperson Richie Melby said in the email.

In an August 14 letter to Montana, the DOJ said the voter list is subject to federal privacy protection.

However, the letter also said federal law doesn’t consider the last four digits of a Social Security to be “a Social Security number for purposes” of the 1974 Privacy Act, and driver’s license numbers are exempt too when used for enforcement, as the DOJ was doing.

The Secretary of State’s statement last week that the agency did not provide all the information the DOJ requested came in a cease and desist letter to the Montana Free Press.

In a story published Feb. 4, the Free Press said Montana appeared to have provided a public voter list to the DOJ at the end of July, and then provided an unredacted file sometime after Aug. 14.

Later updated, the Free Press story said it did not receive comment from the Secretary of State prior to publication despite multiple requests, but it did receive public records, including a letter where the Secretary of State said Montana had “fully satisfied” the DOJ.

In response, the Secretary of State denied turning over any confidential records.

In a video posted to social media, Jacobsen alleged months of misinformation, including that someone or some agency released “how Montanans have voted,” although she did not state the source of that claim.

In the video, Jacobsen also said a story by an “online Montana media organization” had “added to the confusion.” She said “Montana has not released an unredacted version of the Montana voter file,” and “Montana values your privacy.”

‘What does that mean?’

The Brennan Center for Justice has listed Montana as having provided publicly available information to the DOJ, citing public records.

Eileen O’Connor, a senior counsel for the center, said Tuesday she also would like to know what else Montana may have sent to the DOJ based on the reference in Jacobsen’s letter to “additional information.”

“If I could ask the Secretary of State’s Office myself, that’s what I would ask. What does that mean? What does that include?” O’Connor said.

The Brennan Center has described the demands for voter records as “unprecedented” and an encroachment on the power of states to run elections as outlined in the Constitution.

In her Dec. 29 letter to the DOJ, Jacobsen said Montana is a “national leader in protecting election integrity.” She also said the federal oversight on states’ compliance with the National Voter Registration Act is “long overdue.”

However, Jacobsen also said her office was aware of litigation in different states regarding voter files and will be monitoring them “for clarification regarding scope of authority in the future.”

Since September, the Trump administration has sued more than 20 states for voter records, including ones that provided public lists, according to the Brennan Center.

O’Connor said just three have had any decision on the merits, and in all three cases, the courts dismissed the case, in Oregon, California and Michigan.

“The states are not going to be ordered to turn over the information,” O’Connor said.

Too much cooperation, or not enough

Some lawmakers want Montana to comply fully with the demands of the DOJ, but others have questions about whether the Secretary of State already breached privacy.

Last week, at least one legislator praised Jacobsen for working with the administration on election integrity, but others have said she needs to come clean with the public about exactly what her office has shared with the feds.

Rep. Jerry Schillinger, head of the Legislative Audit Committee, said he was pleased to hear Jacobsen turned over information in response to the call from the U.S. Department of Justice.

Schillinger, R-Circle, also said he doubts the Secretary would share any information one federal agency or another doesn’t already have in its possession.

“I actually applaud the fact that the secretary is working with the feds on election integrity here on the voter rolls,” Schillinger said. “I think that’s one of the most serious questions we have today.”

He said he doesn’t believe election integrity is as much of a problem in Montana as it is in other states, but he said it’s fair to treat all states the same.

In a 2022 court decision, a judge found no evidence of widespread voter fraud in Montana, where Republicans have controlled the Secretary of State’s Office and all other elected state offices since 2020.

However, Caferro, a Democrat, said Montanans have pushed back on the federal government in the past, like when she and other legislators said “no” to REAL ID, a federal law to standardize identification.

“The Secretary of State has a choice. She can say ‘no’ to all of this, all of this sharing with the federal government,” Caferro said.

Caferro previously raised concerns about voter privacy related to the DOJ’s request to the Secretary of State and has asked questions herself.

She said Jacobsen has an obligation to be transparent with members of the public, who pay her salary.

Instead, Jacobsen is using public resources to send out mailings that picture her with Trump then refusing to be responsive to the people, Caferro said.

“All of her actions are politically motivated,” Caferro said.

‘An opportunity to explain herself’

Some states that have turned over records to the DOJ have signed memorandums of understanding with the agency that would require election officials to remove voters following a federal review of their rolls.

A draft MOU posted on the Brennan Center site also describes security required in the file transfers to protect from “unauthorized use.”

In her Dec. 29 letter to the DOJ, Jacobsen said she was operating “in the spirit of the information contained in the proposed” MOU when it came to security, but she could not sign it, as her team had communicated earlier.

This omission also has prompted questions.

Sen. Theresa Manzella, R-Hamilton, said Thursday she put the matter on the March 9 committee agenda for the State Administration and Veterans’ Affairs interim committee following news Montana had not signed the MOU.

Manzella is head of the interim committee, which has oversight of the Secretary of State’s Office.

“The agenda item would be to solicit an explanation from her as to why she chose not to sign the memorandum of understanding and just give her an opportunity to explain herself,” Manzella said.

Manzella later said she had put in a call to the Secretary of State’s Office for a legal assessment and additional information.

“I’m just trying to better understand where they’re drawing the line and why they are drawing the line,” Manzella said.

Trying to ‘bully states’

The conflict is unfolding as President Donald Trump ramps up calls to “nationalize the voting” and argues that Republicans should “take over the voting.”

In a Stateline story in December, the nonpartisan Center for Election and Innovation Research described the DOJ’s push for records as something that “should frighten everybody across the political spectrum.”

“They’re trying to use the power of the executive branch to bully states into turning over highly sensitive data: date of birth, Social Security number, driver’s license — the holy trinity of identity theft,” the center’s director David Becker told Stateline, an affiliate of the Daily Montanan.

Sen. Janet Ellis, D-Helena, said she’s concerned Jacobsen might still sign the memorandum, even though it does not legally govern the voter rolls.

Ellis, a previous member of the State Administration and Veterans Affairs’ committee, said the Secretary of State does not have permission to change voter rolls in Montana.

“It’s up to local governments to do that,” Ellis said.

Editor’s note: Editor Darrell Ehrlick contributed to this story.