Legislators to subpoena Secretary of State on voter roll question

Members of a legislative oversight committee voted 10-1 this week to subpoena Secretary of State Christi Jacobsen for the type of information her office turned over to the U.S. Department of Justice.

Sen. Mike Cuffe, a Eureka Republican, cast the only opposing vote. Cuffe said some of the discussion in recent months had been partisan, and he believes Jacobsen was trying to follow the rule of law.

For months, lawmakers have tried to learn what voter information Jacobsen’s office provided to the Department of Justice in response to its demands that states turn over voter rolls so it can confirm ineligible voters aren’t on the lists.

Jacobsen, a Republican, has been largely unresponsive to legislators. She did not appear at the State Administration and Veterans’ Affairs Interim Committee meeting Wednesday or send a representative from her office.

Secretary of State spokesperson Richie Melby said Jacobsen was not invited to that portion of the meeting and was occupied with a security test in preparation for the general election in November.

“The Secretary of State’s Office and its partners are focused on protecting Montana’s elections from bad actors in China, Iran and Russia,” Melby said in an email. “I think you would agree that ensuring the physical and cyber security of Montana’s midterm federal general election is pretty significant.”

Melby did not address a question about how Jacobsen would respond to the subpoena.

Committee chairwoman Theresa Manzella, a Hamilton Republican, defended Jacobsen’s response to the federal government, saying the Secretary of State was obligated to work with “federal partners in verifying citizenship and purifying the voter rolls.”

But Manzella ultimately said the committee made a limited request, and she expected the Secretary of State to respect its position. Six Republicans and all four Democrats on the committee voted to approve the subpoena.

In a statement after the vote, Sen. Jacinda Morigeau, an Arlee Democrat, said election administrators across the state maintain accurate voter rolls.

“Montana’s Secretary of State should not be in the business of second-guessing them and sending private voter information to the federal government,” Morigeau said. “The federal government overstepped its authority, but this boils down to a simple question: What did the Secretary of State share?”

Morigeau and other committee members said the subpoena was the only way to answer the question. Members of the public, including with the League of Women Voters and a grassroots group called Project Paperclip, spoke in favor of the subpoena.

The language in the subpoena demands a copy of the Montana Voter List the Secretary of State’s Office provided to the Department of Justice “containing only the column headings or labels” to indicate categories of information provided but to omit confidential information.

It said the information will be used to educate the committee as it formulates policy in advance of the 2027 Montana Legislature as part of its responsibility to monitor executive branch agencies.

“The committee will also consider whether to introduce legislation regarding the definitions and disclosure of confidential information of its citizens under Article II, Section 10, of the Montana Constitution,” the right to privacy, says the draft subpoena.

The SAVA committee oversees the Secretary of State’s Office and for months has been asking Jacobsen to disclose the categories of data her office provided to the federal government. Members of the public also have raised concerns about privacy rights.

Rep. Peter Strand, a Bozeman Democrat, said people across the political spectrum have reached out to him with concerns Jacobsen shared their private information with the federal government.

“In fact, it’s the most unifying topic I’ve experienced with my constituents,” Strand said.

Some members of the public filed records requests directly with the Secretary of State, and at the meeting, lawmakers reviewed the response from the secretary’s chief legal counsel and a corresponding memo from legislative staff.

A May 28 letter from chief legal counsel Austin James to a law firm in response to a records request said the file requested “is no longer available,” but it shared specific information “about your clients” (the publicly available copy in the committee packet redacted the clients’ details).

In the letter, James said the records request was based on misinformation the Secretary of State’s Office was forced to correct in a media report. He said the office hopes “to avoid further dissemination of knowingly false statements,” and public servants “should not be subjected to harassment.”

In response to a question from Kalispell Republican Rep. Lukas Schubert, legislative research analyst Rebecca Power said it did not appear the Secretary of State provided driver’s license numbers or the last four digits of Social Security numbers based on the letter from the chief legal counsel.

But Power also said the office shared information that couldn’t be clearly identified, and Manzella said the Secretary of State did share the last four digits of Social Security numbers, as those are issued by the federal government.

Morigeau said legislative staff and members of the public shouldn’t have to “infer an answer,” so the committee should exercise its authority to get an answer “to this very simple question.”

In a letter to the DOJ late last year, Jacobsen said she provided the information the federal agency requested, but she also has said she did not provide everything the feds wanted and has protected voter privacy.

In a meeting in April, James told members of a different legislative committee that the DOJ had sued states for voter information, and Montana wanted to avoid a lawsuit so he wasn’t talking about its position with specificity.

At the meeting Wednesday, Rep. Marc Lee, a Butte Democrat and vice chairman of the committee, said the question wasn’t about the authority of the federal government or the ability of the Secretary of State.

Rather, he said, the question was simply what information the Secretary of State had shared with the federal government, and it was within the committee’s jurisdiction to pose the question.

“That was a very easy, basic question that was asked of the Secretary of State’s Office multiple times that (it) was unable to answer,” Lee said.

In response to a question from Sen. Wendy McKamey, a Great Falls Republican, and Morigeau, Power said the Trump administration had filed lawsuits against 30 states and the District of Columbia to enforce its requests for voter rolls.

Citing a recent media report, Power said the administration had lost 23 cases as of a couple of weeks ago, and the others appear to be pending.

Andria Hardin, legislative legal staff, said the secretary of state may comply with the subpoena, or her office may try to quash it in court, which would result in litigation over whether the office is required to turn over the information.