Secretary Jacobsen seeks U.S. Supreme Court action on 2021 Montana election laws

Montana Secretary of State Christi Jacobsen this week asked the U.S. Supreme Court to take up a case involving two state election administration laws that were declared unconstitutional by the Montana Supreme Court in March.

The 36-page petition, filed with the high court Aug. 26, argues the Montana Supreme Court erred in striking down laws passed by Republican lawmakers in 2021 that ended same-day voter registration and prohibited paid ballot collection in Montana elections. More specifically, Jacobsen’s legal team asserted that the court’s actions infringed on the Legislature’s constitutional authority to enact laws governing the time, place and manner of federal elections.

“The Montana Supreme Court has assumed a de facto new role as the final and exclusive arbiter of all federal election legislation in Montana,” the petition read. “This Court’s review is urgently needed to determine whether that court has ‘arrogate[d] to [itself] the power vested in’ the Montana Legislature ‘to regulate federal elections.’”

Jacobsen’s office Friday declined to offer a statement regarding the petition. Her decision to appeal the Montana Supreme Court’s ruling met with criticism from groups who initiated the case, with Upper Seven Law Executive Director Rylee Sommers-Flanagan calling the petition “a complete waste of government resources” in a statement to Montana Free Press Friday.

“At best, it’s a Hail Mary attempt to rehash a case from the last [U.S. Supreme Court] term,” wrote Sommers-Flanagan, who represented the Forward Montana Foundation, Montana Youth Action and the Montana Public Interest Research Group in the lawsuit. “At worst, it’s our state elected officials asking the U.S. Supreme Court to rescue them from the Montana Constitution — for no reason other than to prevent young people and Native Americans from voting.” 

Jacobsen’s request included more than 400 pages of appendices mapping out the path this particular legal battle has taken over the past three years. It started in spring 2021, days after Gov. Greg Gianforte signed a bill ending Election Day voter registration, and in subsequent months ballooned into a consolidated lawsuit involving the Montana Democratic Party, Western Native Voice and a coalition of other youth and tribal voting rights groups. The parties challenged the voter registration deadline change along with the paid ballot-collection ban and two other bills, one that enacted new voter ID requirements and another that barred the early distribution of mail ballots to minors who would be eligible to vote by Election Day.

After a nine-day trial in 2022, Yellowstone County District Court Judge Michael Moses ruled that the challenged laws violated the Montana Constitution by placing undue burden on the rights of voters. Jacobsen promptly appealed the decision to the Montana Supreme Court, which upheld Moses’ finding this spring partly on the basis that the voter protections established by the state Constitution surpass those in the U.S. Constitution. Jacobsen’s request to the U.S. Supreme Court this week only seeks action regarding the laws that ended same-day voter registration and prohibited paid ballot collection.

In addition to seeking the reinstatement of those laws, Jacobsen’s legal team has presented the petition as an opportunity for the U.S. Supreme Court to tackle questions left unanswered in its ruling last year in a case known as Moore v. Harper. The case, which originated with a dispute over new congressional districts adopted by North Carolina’s Republican-controlled legislature in 2021, drew national attention for its focus on the “independent state legislatures” theory — a legal argument that the U.S. Constitution grants state legislatures with policy-making authority over federal elections unfettered by state judiciaries. The court rejected that theory in a 6-3 decision in June 2023.

Jacobsen’s petition acknowledged the ruling, but suggested that the decision failed to provide guidance as to when a court’s review of such laws intrudes on a state Legislature’s authority. She now posits her appeal could give the nation’s high court an opportunity to clearly define those judicial boundaries.

“Given the increased focus nationwide on safeguarding the security of state and federal elections, these questions will continue to arise until this court resolves them,” the petition concluded. “Petitioner seeks review of holdings invalidating registration-deadline changes and rules governing ballot collectors. These are mine-run election-integrity issues throughout the country.”

According to the petition, Jacobsen — a Republican who is currently seeking reelection to a second term — is being represented by Attorney General Austin Knudsen and members of his staff, as well as two attorneys with the Virginia-based law firm Consovoy McCarthy. Consovoy McCarthy was involved last year in a U.S. Supreme Court case that struck down race-based policies in college admissions, representing one of the plaintiff groups. Knudsen’s office did not immediately respond to questions Friday regarding when the firm was hired to represent Montana in Jacobsen’s petition or what rates the state is paying for its services.

Alex Sakariassen is a reporter for the Montana Free Press, a nonprofit newsroom, and can be reached at asakariassen@montanafreepress.org.