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High court puts brakes on laws ending Election Day registration, tightening voter ID requirements

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Montana Supreme Court (copy)

The Montana Supreme Court hears arguments in this April photo.

The Montana Supreme Court on Wednesday barred the state from enforcing laws eliminating Election Day voter registration and creating stricter requirements for voter identification at the polls.

In a majority opinion written by Justice Laurie McKinnon, the court stressed that the justices “did not address the ultimate merits of the claims that are to be resolved at trial,” but narrowly found that Yellowstone District Court Judge Michael G. Moses didn’t abuse his discretion in granting the injunction in April.

Justices Mike McGrath, Jim Shea and Ingrid Gustafson also signed the majority opinion.

The high court’s opinion is the latest twist in a meandering legal journey for the two election laws, passed by Republican lawmakers in 2021. Three separate lawsuits challenging four new election laws were filed last year by the Montana Democratic Party, a coalition of Native American organizations and a trio of youth advocacy groups. Those three lawsuits were later consolidated into one case, in which nearly a dozen individual plaintiffs are suing Montana Secretary of State Christi Jacobsen, the sole defendant.

After Moses initially granted a preliminary injunction in April, Jacobsen asked him to suspend that injunction while her office appealed it. Moses declined to do so, but the state Supreme Court, less than three weeks before Montana’s primary election, granted the Secretary’s request. That order effectively reinstated the new laws for the June primary.

It applied only while the Supreme Court was weighing Jacobsen’s appeal of the preliminary injunction.

The Montana Public Interest Research Group, one of the youth organizations who challenged the voter ID law, celebrated the court's ruling in a press release Wednesday.

“This is a victory for Montana voters and especially for students and young Montanans more broadly,” executive director Hunter Losing stated. “Young people use Election Day registration at twice the rate of older Montanans. We will be working hard for great turnout in November.”

Other plaintiffs also welcomed the order.

“Today’s ruling by the Montana Supreme Court is a positive step in the fight for equal rights for Native Americans. While this law would have disproportionately affected Native Americans in Montana, today is a win for all Montana voters. Democracy functions best when more people get to participate, and allowing more time for voters to participate means a more representative democracy for all of Montana,” said Western Native Voice political director Keaton Sunchild.

Sen. Mike Cuffe, a Libby Republican who sponsored the voter ID bill and carried the bill to eliminate Election Day registration in the Senate, stressed that the decision was narrowly based on whether the district court had abused its discretion.

"I'm disappointed," Cuffe said. "I think the law was well written, well intended and I'm glad it's merely a decision on procedure and not a decision on the merits." 

Wednesday's majority opinion leaned heavily on the state Supreme Court’s 2020 decision to uphold a preliminary injunction on the Ballot Interference Prevention Act. That law prohibited third-party ballot collection activities, and was ultimately found to unconstitutionally burden Native Americans’ right to vote.

Under that framework, the justices wrote that Jacobsen needed to establish either that the state would suffer some degree of harm or irreparable injury if the injunction remained in place.

The court’s majority referred to expert testimony that the voter ID law would disproportionately burden young people, who the law requires to provide additional forms of identification at the polls if their only form of photo ID is from their college or university.

The majority balanced that against the state’s interest in preventing voter fraud and boosting voters’ confidence in the elections. The decision quoted one of the plaintiffs’ expert witnesses, who stated that “voter fraud of any sort is vanishingly rare in Montana, with only a handful of cases of the last 20 years,” and added that more than 8 million votes were cast in Montana elections during that time.

Regarding the end of Election Day registration, the court wrote that Jacobsen failed to puncture Moses’ finding that it “unconstitutionally burdens the fundamental right to vote by eliminating a widely used and relied on voting option — particularly by Native Americans.”

Justice Jim Rice, in a dissent also signed by Justice Dirk Sandefur, disagreed with the process Moses used to evaluate the laws when he granted the injunction. Moses analyzed them under “strict scrutiny,” which essentially holds that the laws must achieve their stated purpose in a way that places as little burden on voters as possible.

While Rice said that wasn’t necessarily the wrong level of scrutiny to apply to the laws, he disagreed with the method Moses used to decide that strict scrutiny applied.

“If all election laws that simply bear upon a fundamental right are subject to strict scrutiny review,” Rice wrote, “the Legislature would be constrained from enacting even minor changes, despite the Constitution’s charge to the Legislature to … ‘insure the purity of elections and guard against abuses of the electoral process.'”

Stressing that the legislative branch has discretion to regulate elections in Montana, Rice echoed arguments advanced by a number of Republican lawmakers.

Even in the absence of significant voter fraud in Montana, Cuffe on Wednesday objected to what he called "having to prove fraud in order to pass legislation, while what you're trying to do is make a good process better, and try to avoid future problems."

In a separate dissent, Justice Beth Baker sided with the majority opinion regarding the voter ID law, but wrote that she agreed with Rice regarding the law ending Election Day registration.

With the justices’ decision Wednesday to reject that appeal, the laws are once more on hold, pending Moses’ decision in the case at the district level.

Whatever his ruling, it’s likely to be appealed as well — a scenario he hinted at while speaking at the close of the August trial.

Moses didn’t offer a timeline for his decision, beyond indicating that it will come before the general election, and potentially in time to allow for an appeal to the Supreme Court.

The case has been an expensive one for the state, which hired a private law firm to defend the election laws in the consolidated case. That law firm was paid $1.2 million by Jacobsen’s office over a one-year period ending before the August trial, and a legislative fiscal analyst indicated last week the cost of defending the election laws was in the ballpark of $1.4 million by the end of June.

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