How Montana’s new election laws failed legal muster

Big news struck the 2022 election landscape last week as three new laws that changed how Montanans can vote and access the polls were declared unconstitutional. Come Nov. 8, people will once again be able to register to vote on Election Day, use student IDs and voter registration cards as primary identification at the polls, and accept payment for collecting ballots on behalf of voters unable to return them themselves.

Plaintiffs in the litigation that brought about this return to pre-2021 election administration laws hailed it as a victory for ballot access in Montana. Ta’jin Perez, deputy director at Western Native Voice, said the outcome is “a reminder to those who work to limit voting rights and access that they will be challenged and they will lose.” Several youth plaintiffs in the state echoed that celebratory sentiment.

“Young people are balancing school and work and a lot of other adult activities for the first time,” said Scout McMahon, initiatives chair for Montana Youth Action “Today’s decision ensures registering to vote and voting in Montana will stay simple and easy.”

Meanwhile, Republican lawmakers who passed the trio of bills greeted the ruling as an expected disappointment from what spokesperson Kyle Schmauch characterized as a “liberal activist judge.” Asked for comment from Secretary of State Christi Jacobsen, who requested two of the bills and is the case’s sole defendant, spokesperson Richie Melby responded, “We are not going to let down in the fight to make Montana elections the most secure and accessible elections in the nation.” Melby did not directly answer whether Jacobsen would appeal the decision to the Montana Supreme Court.

The ruling itself, issued by Yellowstone County District Court Judge Michael Moses, came in at a dizzying 199 pages — not surprising given the thousands of pages of material submitted in the case and the hours of testimony delivered both during depositions and a nine-day trial. Contained within those pages are not only the grounds on which Moses ultimately determined that each law violated constitutional guarantees, but a smattering of legal reactions to the broader forces that propelled such changes into statute in the first place. Here’s that additional context, along with a brief summary of more than a year of legal twists and turns.

HOUSE BILL 176

In April 2021, Montana’s 15-year practice of allowing eligible voters to register and cast a ballot on Election Day came to an end with the passage of HB 176. The bill stoked intense debate prior to its entry into state law, and succeeded on party-line votes in both legislative chambers.

Plaintiffs in the resulting litigation spent months making a case to the court about the widespread popularity of Election Day registration, pointing to data from the secretary of state’s office showing that more than 70,000 people have made use of the option since its inception in 2006. They further argued that Election Day registration is especially useful for particular groups of Montanans who face unique challenges in registering in person or by mail — namely, young and elderly residents and people living in Native communities.

The defendant, Jacobsen, countered that Election Day registration creates an administrative burden for local election officials and results in long lines that might deter voters from casting their ballots. She also claimed that the added workload for county election staff opens the door to delays in reporting election results and mistakes in the processing of voter registration forms and ballots.

Judge Moses blocked HB 176 and the other two contested laws in April while the case proceeded. The Montana Supreme Court temporarily stayed parts of that injunction in May ahead of the primary election, but reversed course and upheld it last month, meaning all three laws were on hold pending the lower court’s final ruling.

What Moses said: Much of Moses’ Sept. 30 order was a rehash of expert testimony presented throughout the case, including evidence about the challenges to ballot access that income, infrastructure and geography create for certain voters. He recounted as fact a point that the plaintiffs had argued repeatedly: Native American and young voters disproportionately rely on Election Day voter registration as a result of such factors, and are thus disproportionately impacted by its elimination. Based on the factual record, Moses concluded that the earlier deadline for registration set by HB 176 “denies Montanans their right to vote for one and a half days during each election cycle.”

“It would be unconstitutional to deny Montanans the right to bear arms for one and a half days,” he wrote, before extending the same observation to the rights to freedom of religion, due process and privacy also laid out in the Montana Constitution.

As for the election integrity interests Jacobsen claimed were served by the law, Moses remained unconvinced. Jacobsen, he wrote, provided “no evidence” of any election errors or reporting delays resulting from Election Day registration, or that its elimination would reduce lines at polling places. If anything, Moses determined, the requirements and face-to-face interactions specific to Election Day registration make it “more secure” than the standard registration period. And by enabling local officials to fix any registration mistakes “up to the last minute,” he added, Election Day registration “ameliorates any technical glitches” the state might experience and constitutes “a failsafe against disenfranchisement.”

“There are myriad ways for the state to reduce administrative burdens on elections officials without the disenfranchising effects of ending EDR [Election Day registration], including hiring more poll workers on Election Day, offering simpler or more frequent training to election administrators, and modernizing election equipment,” Moses wrote in his findings of fact, adding that there’s “no evidence that the Legislature or the secretary considered any of these options as an alternative to ending EDR.”

SENATE BILL 169

Heading into the 2021 Legislature, one of Jacobsen’s top policy priorities was addressing the issue of voter identification. That push resulted in SB 169, which revised the list of photo IDs Montana voters could use at the polls. Despite efforts by a bipartisan group of lawmakers to craft language that would garner wider support, the final version demoted student IDs to second-tier status — requiring that they be accompanied by another identifying document — while elevating concealed carry permits. It was signed into law alongside HB 176 in April 2021.

Even before its passage, youth plaintiffs in the case lobbied hard against the bill’s treatment of student IDs. The case saw a continuation of that narrative, with several witnesses testifying that voters living on Montana campuses don’t always possess a driver’s license, a utility bill or a personal bank statement. The plaintiffs broadened their argument in court as well, emphasizing via expert witnesses that photo ID requirements are designed to ensure a voter is who they say they are, not to prove their eligibility or residency when voting in person.

Jacobsen’s legal team defended SB 169 as a critical safeguard against voter fraud. They also argued that campus-issued student IDs offer no proof that a voter is a resident of Montana, and that the new law actually enhanced the use of other photo identification by scrubbing a previous requirement that all IDs be current and active.

What Moses said: During the trial, no witnesses testified they’d ever used, or had to use, a student ID at the polls. Moses took note of that fact, pointing out in his order that the plaintiffs had “not identified a single individual who was unable to vote due to SB 169.” Even so, the plaintiffs’ argument won out, with Moses ruling that the law’s demotion of student IDs was a violation of the state Constitution’s Equal Protection clause. And he went a step further, concluding that lawmakers clearly intended to raise barriers specifically for young voters.

“It is no accident that the Legislature passed SB 169 just months after Montana’s youngest voters turned out to vote at record rates,” Moses wrote. “Montana’s legislators passed the bill to prevent some young Montanans from exercising their right to vote.”

Moses also dismissed Jacobsen’s claims about potential voter fraud, finding “no evidence” that SB 169 would do anything to prevent such crimes. He reached the same conclusion in relation to all three challenged laws, and spoke to the issue — a driving force in the ongoing debate over election integrity in Montana — repeatedly in laying out the case’s factual record.

“The Secretary has provided no evidence that voter fraud is a substantial problem in Montana, nor that there exists any connection between voter fraud and the voting restrictions at issue in this case,” Moses wrote. “And indeed, all evidence presented in this case is to the contrary.”

The ruling on SB 169 did feature one twist. On the question of whether Montana’s new voter ID law impermissibly interfered with the right to vote, Moses found that it did not. Given the mandate on lawmakers to protect the state’s electoral system, Moses wrote, the Montana Constitution “cannot be interpreted to prohibit the Legislature from restricting primary ID to government-issued Montana or federal ID to prove their identity at a polling place and cast a ballot.”

HOUSE BILL 530

During the final days of the 2021 session, Republican lawmakers revived a previously unsuccessful effort to raise new laws around ballot collection in Montana. A bill originally aimed at directing the secretary of state to adopt new rules addressing election security — HB 530 — was amended to include a prohibition on offering, providing or receiving “pecuniary benefit” for distributing ballots to or collecting and delivering them for Montana voters. Violation of the law carried a civil penalty of $100 for each ballot distributed, collected or delivered.

Several plaintiffs in the case, including the Montana Democratic Party and Western Native Voice, had been down that road before. They’d challenged a previous 2017 law implementing restrictions on ballot collection and won in two separate district court rulings. This time around, the plaintiffs resurrected similar arguments: that paid ballot collection alleviates access challenges for Native American voters, and is in many cases the only way elderly and disabled Montanans are able to vote.

Jacobsen’s lawyers once more invoked the threat of fraud, arguing that paid ballot collection opens the door to coercion and intimidation on the part of people collecting ballots from others. The defense’s counsel also challenged HB 530’s ripeness for a legal challenge on the basis that Jacobsen had not yet begun the process of establishing new rules around ballot collection as required under the law.

What Moses said: First off, Moses waved off Jacobsen’s assertion that the law wasn’t ready for judicial review, stating that the language of HB 530 had already had a chilling effect on Western Native Voice and other groups that have historically engaged in paid ballot collection activities. In response to the election security argument, he again concluded that Jacobsen had presented no evidence to support a link between paid ballot collection and voter fraud.

As for the plaintiffs’ claims, Moses wrote that “little has changed” in the two years since the Montana Supreme Court and two district courts invalidated the Ballot Interference Prevention Act. The factual record in those cases regarding the burdens on certain groups of voters were “identical” to what plaintiffs presented in Moses’ courtroom, leading him to rule that HB 530 unconstitutionally burdened the right to vote and violated the Constitution’s Equal Protection clause. Moses concluded as well that the law and its $100 penalty violated the free speech and due process rights of organizations seeking to engage in ballot-assistance efforts.

HB 530 also set the stage for Moses’ most damning indictment of the Legislature’s motives in passing new election administration laws. In his legal conclusions, Moses addressed at length the procedural process that led to HB 530’s paid ballot collection ban. Lawmakers were “plainly on notice” about the discriminatory impacts of such measures after the litigation over BIPA, Moses wrote. Despite that knowledge and cautionary testimony entered on the session’s earlier, unsuccessful ballot-collection bill, Republican legislators added the provision “at the last moment without any committee hearings or opportunity for public testimony,” Moses wrote.

“This irregular procedure is itself indicative of discriminatory intent,” Moses concluded.

As of Oct. 5, the Montana Supreme Court’s docket showed Jacobsen had not filed an appeal in the case.

The Montana Free Press is a nonprofit newsroom based in Helena. To read the article as originally published, click here.