Three controversial election laws enacted by Montana Republicans in 2021 have been ruled unconstitutional, setting up a possible appeal to the state’s high court with five weeks to go before Election Day.
In a 199-page order released Friday, Yellowstone County District Court Judge Michael G. Moses struck down laws ending Election Day voter registration, creating tighter voter identification requirements and dramatically restricting third-party ballot collection.
The three laws were among four originally challenged more than a year ago by nearly a dozen plaintiffs in three separate lawsuits. The three cases were eventually consolidated, and the groups challenging the laws faced off against the sole defendant, Republican Secretary of State Christi Jacobsen, in a nine-day trial in August. They were passed by a Republican-majority Legislature along nearly party-line votes.
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Moses previously struck down the fourth election law being challenged, which would have barred anyone who turns 18 before Election Day from getting a ballot before their birthday.
The three groups of plaintiffs are: the Montana Democratic Party and former party employee Mitch Bohn; Western Native Voice, Montana Native Vote, the Blackfeet Nation, the Confederated Salish and Kootenai Tribes, the Fort Belknap Indian Community and the Northern Cheyenne Tribe; and Montana Youth Action, Forward Montana and the Montana Public Interest Research Group.
Plaintiffs alleged that the three laws erected new barriers to voting that disproportionately affected certain groups, including Native Americans living on reservations, college students and voters with disabilities.
Jacobsen’s attorneys had argued that the laws were crafted to reduce the potential for voter fraud and bolster the public’s confidence in Montana’s election processes.
But Moses noted in his order “There is no evidence of significant or widespread voter fraud in Montana, let alone any fraud that (the challenged laws) would remedy.”
Jacobsen, along with many Republican lawmakers, have said Montana’s Constitution specifically gives the Legislature authority to determine how to hold elections in the state. Montana didn’t allow registration on Election Day until 2006, and they argued it’s up to lawmakers if they want to revert back to the previous system.
Moses wrote, however, “that does not mean the Legislature has power to take away (Election Day registration) without that power being subject to judicial review and interpreted in conjunction with the fundamental rights guaranteed to Montanans in the Constitution.”
He added, “Once the state decides to offer a voting opportunity, the elimination of that voting opportunity is subject to constitutional limitations.”
Moses also cited testimony from Jacobsen’s legal counsel, who acknowledged there was no evidence that Election Day registration or using student IDs to vote had a negative impact on public confidence in elections.
Citing higher poverty rates, worse health and educational outcomes, higher homelessness and other factors, Moses wrote that “a panoply of socioeconomic factors — the result of centuries of discrimination against Native Americans — make it more difficult for Native Americans living on reservations to register and vote.”
He also relied on testimony from the plaintiffs’ expert witnesses, including a range of analyses indicating that Native American voters were more likely to rely on third-party ballot collection and Election Day registration to vote than non-Native Montanans.
The ballot collection law prohibited groups from offering compensation for collecting ballots, among other restrictions.
The expert witness offered by Jacobsen, however, was given “little, if any, weight” by Moses, who wrote that he “provided no specific analysis of the issues in this case.” Moses didn’t discuss Jacobsen’s other expert, a former Colorado Secretary of State who has advanced unsubstantiated allegations of election fraud in the 2020 election. He submitted reports to the court but was not called to testify at trial.
The third law under review created a new category of “secondary” voter ID, effectively demoting student IDs and requiring additional documentation if a voter uses one to vote at the polls.
Moses rejected Jacobsen’s argument that the law was needed to restore confidence in election processes, citing a lack of evidence that it would do so. He also noted that the law promoted concealed carry permits to be accepted on their own as sufficient voter ID, yet “they are administered on a county-by-county basis and are not required by Montana statute to bear a photograph with the permit-holder’s likeness.”
Noting that young Montanans turned out to vote in record numbers during the 2020 election, Moses wrote that “Montana’s legislators passed the bill to prevent some young Montanans from exercising their right to vote, in direct contravention of Montana’s Equal Protection Clause.”
For now, Moses’s order means that voters can still register on Election Day until the polls close, and the state’s pre-2021 voter ID requirements remain in place. Notably, students can still use their school IDs to vote in-person. But an appeal is likely before the Nov. 8 election, an eventuality that even Moses had hinted at while addressing the attorneys at the end of the August trial.
Jacobsen’s office did not respond Friday when asked whether it planned to appeal, but her office has already shown a willingness to do so twice before in the same case.
After Moses granted preliminary injunctions on the laws, the high court rejected the secretary’s appeal in an order released just last week. The court wasn’t united on the opinion though, with three justices dissenting and four signing onto the majority opinion.
Previously the high court had sided with Jacobsen on the narrow question of whether Moses should have granted a stay on his injunction shortly before the June primary.
Jacobsen spokesman Richie Melby provided the following statement: “The response from the Montana Secretary of State is that we are not going to let down the fight to make Montana elections the most secure and accessible elections in the nation.”
Kiersten Iwai, the executive director of the Forward Montana Foundation, praised Moses’s order. The organization, along with other youth groups, was represented by Upper Seven Law.
“Youth turnout in Montana has increased dramatically over the last decade,” she stated in a press release Friday. “The Legislature’s response? To make voting more complicated. This ruling reflects that access to the ballot box in Montana must remain free, fair, and straightforward.”
The American Civil Liberties Union of Montana represented the tribes and Native organizations that challenged the ballot-collection and Election Day registration laws.
“Yet again, the courts in Montana have rightly determined that the Legislature cannot trample Native Americans’ fundamental rights,” Jonathan Topaz, and ACLU Voting Rights Project staff attorney, stated in a press release.
With its first Republican governor in over a decade, Montana’s GOP-dominated Legislature in 2021 passed a number of partisan priorities that in prior years would have needed a veto override to make it into law. But the state’s courts have thwarted a number of those new laws, finding constitutional flaws in measures to allow more guns on college campuses, create fresh barriers for transgender people to update their birth certificates and change how justices are elected to the Supreme Court.
Republicans have in turn consistently faulted the courts as overreaching and dominated by left-leaning judges. Kyle Schmauch, a spokesperson for Republicans in the Legislature, attacked Moses as a “liberal activist judge” in a statement Friday.
“The Montana Constitution grants the Legislature authority to write reasonable laws to ensure secure elections,” Schmauch wrote. “If judges want to make policy, they should run for the legislature instead of serving as political activists on the bench.”