Montana high court declares 2021 voting laws unconstitutional

Alex Sakariassen

Montana Free Press

In a highly anticipated ruling Wednesday, the Montana Supreme Court affirmed a lower court’s finding that four laws passed by the 2021 Legislature violate the fundamental rights of voters outlined in the Montana Constitution.

The court’s 125-page opinion closes out an appeal filed in November 2022 by Republican Secretary of State Christi Jacobsen seeking the reinstatement of laws struck down by a district court judge in Billings. Those laws ended same-day voter registration, enacted new vote identification requirements, prohibited paid third-party ballot collection and barred county election officials from distributing mail-in ballots to minors who would be eligible to vote by Election Day.

The Supreme Court’s decision upheld Yellowstone County District Court Judge Michael Moses’ determination that all four laws were unconstitutional.

Jacobsen expressed her disappointment with the ruling Wednesday in a statement emailed to Montana Free Press by spokesperson Richie Melby.

“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,” Melby wrote. “State and county election officials have been punched in the gut.”

The original plaintiffs in the case, which included the Montana Democratic Party, Western Native Voice and a coalition of other youth and tribal voting rights groups, greeted the Supreme Court’s ruling as a “landmark victory” ahead of this year’s federal primary and general elections.

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

ACLU deputy director Alex Rate, another attorney in the case, added in an interview Wednesday with Montana Free Press that the decision demonstrates that the “strawmen” created by state lawmakers and Jacobsen’s office to support passing the 2021 laws were “not valid justifications for restricting the right to vote.”

“I can’t guarantee that this decision sends a clear message that those kinds of shenanigans are not going to be tolerated,” Rate said. “But I would just say that the right to vote in Montana is as strong as exists anywhere else in the country, and Montana voters should rest assured that they can cast their ballots free and unfettered from government intrusion.”

Wednesday’s opinion, written by Justice Mike McGrath and signed by Justices Laurie McKinnon, Ingrid Gustafson and Jim Shea, leaned heavily on the view that Montana’s Constitution guarantees stronger voter protections than the U.S. Constitution — a position they argued was the express intent of delegates to the 1972 Constitutional Convention, and one that warranted a strict level of legal scrutiny. McGrath pointed to evidence presented during the district court’s nine-day trial to explain how the laws placed an undue burden on the right to vote in Montana, and in several cases threatened to disenfranchise young and Indigenous voters in particular.

For example, in explaining the court majority’s position on same-day voter registration, McGrath wrote that more than 70,000 Montanans have utilized that right since it was first established in 2005. He further noted that voters statewide rejected a ballot referendum in 2014 that would have eliminated the practice and that the impacts of repealing it would be especially harsh in tribal communities. The justices extended the same view to paid ballot collection, which McGrath referred to as “the only option to vote for a significant number of Native Americans living on reservations.”

As for the new voter ID requirements passed in 2021, the court’s opinion focused primarily on the elimination of university-issued student IDs as a primary form of voter identification. While Jacobsen and some lawmakers have argued that such IDs offer no indication of a voter’s residency, McGrath pointed out the law only affected identification used to cast a ballot at the polls — a situation, he added, where Jacobsen has acknowledged that the use of identification is not intended to prove residency or eligibility to vote but rather to verify that voters “are who they say they are.”

“Although it is reasonable to draw a line between governmental ID and a Costco card,” McGrath wrote, “it was not reasonable to remove student IDs from the list.”

The court’s opinion also widely rejected Jacobsen’s argument that those three laws would help prevent voter fraud in Montana and bolster voter confidence in the security of the state’s elections.

Lastly, in regard to prohibiting early ballot distribution to minors, the court found the 2021 Legislature’s approach to be “unreasonable and arbitrary.” McGrath and the concurring justices rebuffed Jacobsen’s argument that the law reduced the administrative burden for county election workers and stated it would be “absurd to prosecute a 17-year-old who was turning 18 five days before the election for mailing in their absentee ballot nine days before the election.”

On that issue, the justices split in several directions. Gustafson and McKinnon took a stronger position that the “total or near total elimination of voting options” for minors turning 18 shortly before an election demanded a higher level of legal scrutiny than the majority chose to apply. In a separate opinion, Justice Beth Baker dissented on the basis that in upholding same-day voter registration, the court granted such voters an ample avenue to register and cast their ballots once they become eligible. Baker concurred with the rest of the majority’s opinion.

Justices Dirk Sandefur and Jim Rice concurred on the unconstitutionality of prohibiting ballot distribution to individuals who would turn 18 by Election Day. However, nearly half of Wednesday’s opinion featured a lengthy dissent from the two — authored by Sandefur — pushing back on the level of scrutiny their fellow justices applied to the other three laws. Sandefur accused the majority of performing a “cascading analytical sleight of hand” in asserting that the Montana Constitution affords voters greater protections than the U.S. Constitution. In doing so, he criticized the court’s broader approach to constitutional authority and the separation of governmental powers.

“In an unprecedented exercise of unrestrained judicial power overriding public policy determinations made by the Legislature in the exercise of its constitutional discretion, however ill-advised to some, the majority today strikes down three distinct legislative enactments on the most dubiously transparent of constitutional grounds,” Sandefur wrote.

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This article was first published in Montana Free Press.