State uses Jan. 6 insurrection to argue for tougher voter registration requirements

A Montana assistant attorney general told a federal judge Wednesday afternoon that Montana needs the additional voter registration requirements signed into law by the governor last year in part because so many people, including Montanans, participated in the Jan. 6 riots at the U.S. Capitol because they believed in false election conspiracy theories.

“Right or wrong, January 6 was such an important date because ordinary citizens of the United States feared for the integrity of our voting system of a national election,” Assistant Attorney General Thane Johnson said. “…And ordinary citizens did stupid things; I’m not going to give them any passage on that. It’s stupid things, including a couple of folks from Dillon who I think are still sitting in jail – all out of fear of the integrity of that election.”

Johnson was making his case to U.S. District Court of Montana Judge Brian Morris as to why Morris should not grant a preliminary injunction against House Bill 892, which reiterated existing statute saying it is illegal to vote twice in the same election but also added new registration requirements that a person must provide their registration information from the place or places where they were last registered to vote, lest they be subject to a felony charge and fines.

The bill’s new registration requirements are being challenged in both state and federal court. In the federal case that Morris held the hearing on Wednesday, the Montana Public Interest Research Group and Montana Federation of Public Employees sued last fall, saying the additional requirements and language requiring a voter cannot “purposefully remain registered” to vote in another state or country are overly vague and broad in violation of the U.S. Constitution.

Wednesday’s hearing was on their request for a preliminary injunction blocking the new registration requirements.

Aria Branch, an attorney for the plaintiffs with the Washington, D.C.-based Elias Law Group, told Morris the bill was a “wolf in sheep’s clothing” because Montana and federal law already prohibit double voting, and the new requirements create confusion and could lead to a felony for someone who did not know they were registered in two places and had no intention of voting twice.

Since MontPIRG and MFPE have a goal of registering more young people and their union members to vote, respectively, Branch said their activities are being chilled because they are not clear on the registration process and could subject their members to violating the law.

She told the judge that the state’s arguments that its interest is in protecting from double voting is not enough to override the arguments from the plaintiffs. Their argument is that the bill is too broad and vague because there was an existing prohibiting on double voting, which the plaintiffs agree with, but the updated law now includes a prohibition on double registration that would apply to all Montanans, which she argued means the law is not narrowly tailored.

Branch used the example of an Oregon resident who is automatically registered to vote there under state law who then goes to college in Montana and registers to vote here without realizing they were automatically registered in Oregon. She told Morris that it was possible they could be violating the law, but it was unclear because of how the law was written.

Johnson reiterated what the state has said in filings in this case and in a hearing last month in the state case: that voter registration has not gone down while the law has been in effect and that local prosecutors and county clerks have not been enforcing the criminal provisions in the bill.

He told Morris that the word “purposefully” in the law carries an element of willful intent with it, so he believes the law would not apply unless someone was intentionally registering to vote in two places with the intention of voting in both.

Moreover, he said, the state maintains the two groups don’t face irreparable harm absent an injunction because it took them months after the bill was signed to file suit and because elections were conducted in 2023 while the law was in effect.

Johnson and attorney for the intervening parties, the Republican National Committee and Montana Republican Party, also argued that it is in the public’s and state’s interest not to block the law so close to the June primary, though Branch said the only confusion is actually coming from the additional requirements and there would be no extra burdens on election administrators because they aren’t enforcing the penalties.

Morris said he would have an order out as soon as possible and outlined his considerations in whether to grant an injunction.

“You’ve talked about the need for election integrity, but we’ve also had in our country a history of suppression of the franchise, and we’ve passed laws to make sure that that franchise is open to all eligible citizens,” he said. “So, how do I balance those two concerns, one of election integrity and No. 2 is making sure that someone isn’t deterred from exercising their right to vote because they’re not sure about their registration status and are worried about potential prosecution even though they only vote once.”

Blair Miller is a Helena-based reporter. The Daily Montanan is a nonprofit newsroom.