Montana Supreme Court rules voter restriction laws passed in 2021 are unconstitutional

Carroll College Professor Alex Street speaks via Zoom about challenged voting laws in Yellowstone County District Court
Carroll College Professor Alex Street speaks via Zoom about challenged voting laws in Yellowstone County District Court

Carroll College Professor Alex Street speaks via Zoom about challenged voting laws in Yellowstone County District Court on Aug. 16, 2022. (Darrell Ehrlick/Daily Montanan).

The Montana Supreme Court on Wednesday released a massive 125-page opinion that struck down permanently four voting laws passed by the 2021 Legislature, saying that they impermissibly got in the way of residents exercising their right to vote.

The four laws, which ranged from 18-year-olds registering before Election Day to using university-issued identification, were supported by Republican lawmakers and Republican Gov. Greg Gianforte as ways to enhance the security of the voting process, especially in light of the the false allegations that the 2020 presidential election was stolen.

But in its decision, three years in the making, the Montana Supreme Court’s majority found that the state’s Constitution granted even broader protections for voting than the federal Constitution, and said that the state failed to show a compelling interest in restricting residents’ access to the ballot.

However, not everyone on the court believed the laws should be struck down. In a fiery dissent, Justices Dirk Sandefur and Jim Rice were deeply critical of the rest of the court for claiming Montana’s constitutional protections were more broad than its federal counterpart. And both said that three of the four laws should have remained on the books because they were powers that should be granted to lawmakers, even if they were questionable policy decisions.

The court agreed unanimously that a law that prohibited issuing ballots to Montana voters who were less than 18 when they received the ballot, but would be voting age by Election Day was unconstitutional. The law would have only affected a very limited number of voters who were eligible to receive an absentee ballot, but had not quite turned 18, but whose birthdays were still before Election Day.

In a split 5-to-2 decision, with two concurring decisions, the majority of the court, led by Chief Justice Mike McGrath, determined that the other three laws were too much of an impediment to voters of Montana, and the laws disenfranchised residents and were unconstitutional.

The bills were:

•House Bill 506: This bill would have prohibited anyone who was not 18 from even receiving a ballot, even if his or her birthday would have made them 18 by Election Day. Essentially, lawmakers determined that residents could not touch a ballot until they were 18.

•House Bill 176: Eliminated Election Day registration. This allows residents to register to vote on Election Day or using “same-day registration.” Instead, lawmakers pushed the “late registration” period to end at noon the day before election. Lawmakers said it was necessary to help small elections staff in smaller counties.

•House Bill 530: Banned the use of ballot collectors who receive any “pecuniary benefit.” Opponents argued that this disproportionately harmed Montanans in Indian Country. Proponents said it ensured against corruption by offering money as an incentive for collecting certain ballots.

•Senate Bill 169: Eliminated the use of university-issued identification for identification at polling places. Proponents of the measure argued since universities and colleges have different standards for issuing identification that they should not be used as primary identification, as was the case for years.

Montana Supreme Court analysis

For the past four years, conservative lawmakers and state leaders have been sharply critical of the courts, and Montana’s Supreme Court, as overstepping the separation of powers, a refrain echoed by the minority opinion in Wednesday’s ruling.

However, the majority of the justices focused on the balance between the fundamental “franchise” right to vote, its role in the Montana Constitution, and how many restrictions the Legislature can place on that right before creating an impediment to voting.

Ultimately, the majority of the court agreed that the 1972 Constitutional delegates and the Montana right-to-vote is even more expansive than the provisions contained in the United States Constitution, which triggered the court’s use of a “strict scrutiny” analysis. Under that doctrine, the court must find that the government has a compelling and justifiable interest in restricting a right, and that it is done in a way that is the least intrusive.

However, Sandefur and Rice, in their dissenting opinion, accused the majority of “cherry picking” examples from the 1972 Constitutional Convention and other documents to conclude that Montana’s Constitution afforded more protection for voting rights than the U.S. Constitution (A state constitution can provide more protection or more rights than the federal constitution, but it cannot deny rights guaranteed by it.)

The following groups were part of challenging the four unconstitutional laws:

Montana Democratic Party

Mitch Bohn

Western Native Voice

Montana Native Vote

Blackfeet Nation

Confederated Salish and Kootenai Tribes

Fort Belknap Indian Community

Northern Cheyenne Tribe

Montana Youth Action

Forward Montana Foundation

Montana Public Interest Research Group

There were also 20 attorneys representing the various groups and the state of Montana.

Instead, Sandefur and Rice suggested that Montana adopt a federal test used by the U.S. Supreme Court to analyze the voting laws passed in 2021. Using the Anderson-Burdick test, which the majority rejected, they concluded that three of the four laws passed by the Montana Legislature were within the purview of the lawmakers, even if they made for questionable public policy.

The majority, though, turned to the Legislature and found that it failed to prove the state needed to enact these more restrictive voting laws because it had produced little to no evidence of problems, fraud or even overburdened election staff.

“The Montana Constitution has contained a clear, explicit, unequivocal, and strong protection of the right to vote since before statehood: ‘All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage,’” McGrath wrote for the majority, quoting the constitution itself.

The majority opinion focused on the role of lawmaking as it relates to voting, saying that Montana’s Constitution requires the court to view the legislators’ actions in light of the state constitutional text.

“If the Legislature passes a measure that impacts ‘the free exercise of the right of suffrage,’ it must be held to demonstrate that it did ‘not choose the way of greater interference,’” the opinion said.

Republican-led Legislature wanted to prevent same-day registration

When it was passed in 2021, the Republican-led Legislature said that it wanted to curb same-day election registration to help the already overburdened election workers.

Same-day registration has been in use since the Legislature approved it 2006, and even by lawmakers’ own testimony, it has been a popular option for voters.

However, the same transcripts from the 1972 Constitutional Convention showed that delegates had considered enshrining the same-day registration provision in the constitution, but ultimately decided against it, saying that the Legislature may provide that option, something it declined to do for nearly 40 years after the state constitution’s adoption.

The Montana Supreme Court said that while the Legislature had the option of same-day registration, eliminating House Bill 176 was unconstitutional because the Montana secretary of state and lawmakers had not demonstrated “that eliminating election day registration is the least onerous path to a compelling state interest.”

Moreover, the justices pointed to the nine-day trial in Yellowstone County before Judge Michael G. Moses that showed the bill wouldn’t reduce the workload on small elections staff, merely just move the workload around.

“Indeed, the secretary agreed at trial that it led to an improvement in Montana’s elections. Significantly, Montanans soundly rejected a referendum that would have eliminated Election Day registration in 2014. The Legislature passed HB 176 despite vociferous opposition to the bill in public hearings,” the majority opinion said. “The secretary argues that because this language (of the constitution) is permissive rather than mandatory, the Legislature has discretion to both enact election day registration and to take it way for any reason or no reason at all.”

Leaning into the Constitutional Convention transcripts, the majority said that intent of the framers was to make sure that same-day registration was available, so long “as it was workable.”

“The framers wanted to protect voters from abuses that had occurred with arbitrary registration laws, which caused many voters to become disenfranchised,” the majority said.

The court also said the trial contained evidence that eliminating same-day voting would harm two groups disproportionately — young voters and Native Americans.

“More than 60% of Montanans that utilize Election Day registration are under the age of 34,” the majority said. “The dissent argues that because the registration deadline used to be 40 days before the election, it does not interfere with the right to vote to push it back here. This is like arguing that because absentee voting was once not allowed, it would not interfere with the electorate’s right to vote to eliminate it today — even though three-quarters of voters in Montana now utilize it to vote. Once the right to vote is granted, lines may not be drawn that are inconsistent with Article II, Section 13 of the Montana Constitution.”

Court rules on ballot collection

The 2021 Legislature also outlawed collecting ballots for any “pecuniary benefit” (a term that wasn’t defined in law). Secretary of State Christi Jacobsen, who was named at the defendant in the lawsuit because of her official role of carrying out elections, had said that the courts should have deferred from ruling on the law because the state wasn’t given the chance to create rules, based on the law, that would have allowed paid ballot collectors, but outlawed collection fees on a per-ballot basis.

However, both the trial court and the Montana Supreme Court said that ballot collectors and organizations that collected them, especially in rural places like reservations, serve a critical part of the voting process.

“Based on the extensive record before us, the district court found that Native Americans disproportionately rely on ballot collection to vote, in part due to a history of discrimination around voting and also the unique circumstances in Indian country that make it much more difficult to access polling places or post offices,” the court said. “As a result, Native Americans disproportionately rely on ballot-collection services. Appellees collected at least 2,500 ballots in the 2016 and 2018 elections — or roughly 5% of registered voters living on reservations in Montana each year. However, because the Ballot Interference Protection Act was enjoined just days before the 2020 election, Western Native Voice was unable to fully prepare its collection activities and therefore collected only 400 ballots.”

The court said that lawmakers rejected a less onerous measure aimed at outlawing certain types of ballot collection specifically, and instead just banned all ballot collection.

“We note that this type of nefarious activity is already illegal under, among other things, Montana law,” the majority said. “Significantly, the secretary failed to introduce any evidence of fraud related to ballot collection in Montana.”

University and college identification

The Montana Supreme Court also struck down Senate Bill 169, which prohibited the use of college and university-issued identification as primary identification for voting at the polls.

Though proponents of the bill argued that such a measure was necessary to help eliminate any potential voter fraud, opponents of the measure shot back that these IDs were only used to verify an identity at the poll, not to prove the voter’s eligibility, which is done by a different process.

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Opponents also said that college students were less likely to have other forms of identification, like utility bills, and so the law treated them unequally.

“The record reflects that some legislators amended (Montana law) to discourage students from voting,” the majority opinion said in its review of the lower court’s record. “Rep. (Geraldine) Custer, a former Republican member of the (Montana) House and former county clerk and recorder and election administrator, testified at trial that she believed the amendment was discriminatory because of the perception that students tend to be more liberal and vote accordingly.”

The justices also rejected the notion that eliminating student identification made it easier for poll workers, reasoning that it instead it could have made it even more cumbersome.

“The first step … is to determine whether the secretary has shown that the law is reasonable. We determine she had not,” the opinion said. “However, the record reflects, and the secretary’s own procedures show, that the purpose of showing ID at the polls is not to check a voter’s eligibility to vote, but to verify they are who they say they are.”

Justices Laurie McKinnon, James Jeremiah Shea, Ingrid Gustafson and Beth Baker joined with the opinion by McGrath.

Dissenting opinion and reactions

Sandefur and Rice said that federal courts have allowed lawmakers the power to establish the time, place and manner of voting, and that three of the four challenged laws fell within those parameters. The two more conservative-leaning justices urged the court to adopt a federal standard when analyzing the Montana Constitution, an idea which the majority rejected.

In their nearly 60-page dissenting opinion, they criticize the majority for not giving more “deference to the Legislature’s asserted rationale.”

“The court exposes its view that once the Legislature grants a statutory right or benefit as a matter of legislative discretion, it may later retract it only if the grant was ‘unwise,’” Sandefur wrote. “But the court has now certainly ‘baked’ Election Day into our Constitution for now, a feat which an overwhelmingly 76-22 majority of the actual framers of our constitution squarely refused to do.”

They also criticized their fellow justices for overstepping the balance of powers:

“The heretofore novel idea that has now been sold to this court that legislative acts, and thus the alleged ulterior motives of the Legislature, can now be put on trial requiring evidentiary proof upon every constitutional challenge is, frankly, ludicrous and a serious affront to the delicate balance of constitutional separation of powers which our precious form of distributed-powers government so critically depends.”

A spokesperson for the Secretary of State’s Office issued a statement in response to the ruling:

“The secretary is devastated by this decision but assures Montanans that her commitment to election integrity will not waver by this narrow adoption of judicial activism that is certain to fall on the wrong side of history. State and county election officials have been punched in the gut,” the Secretary of State’s Office said.

Nearly one dozen groups had challenged the laws, and dozens of lawyers were at the nine-day trial in 2022.

“This is an enormous victory for young people in Montana,” said Kiersten Iwai, Forward Montana Foundation’s executive director.  “The youth vote is essential to effective participatory democracy — we vote to build a better future and we will not be silenced.”

“This decision is about the power of the people — especially youth and Native Americans — to choose who represents them in government,” said Rylee Sommers-Flanagan, executive director of Upper Seven Law, counsel for some of the plaintiffs. “Today the court has affirmed that Montanans must be allowed to freely exercise their right to vote, the key to democracy.”


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