The 2020 election in Montana was record breaking, with the highest voter turnout in any election since 1972. This growth in turnout was especially pronounced among young voters, which increased nearly 40% from the 2016 election. Yet rather than celebrating and building on this achievement, the Republican-controlled Montana Legislature instead spent 2021 passing new laws to restrict voting — targeting some of the very provisions that helped contribute to record-breaking civic participation the year before. Among these laws were House Bill 176, Senate Bill 169, House Bill 530 and House Bill 506. All four were justified by Republicans as necessary to secure the “integrity” of Montana’s elections, despite lacking a single instance of voter fraud in any election during the last 20 years.
Last year, three cases were filed in state court challenging these laws — Montana Democratic Party v. Jacobsen, Western Native Voice v. Jacobsen and Montana Youth Action v. Jacobsen. All three lawsuits, which were consolidated under Montana Democratic Party, argue that the laws violate several provisions of the Montana Constitution, mainly by burdening the right to vote for young voters, Native American voters, elderly voters and voters with disabilities. In a victory for young voters, H.B. 506 was struck down last month, but the other three laws are headed to trial next week. Find all the facts you need to know about the challenged laws here.
Who is involved in the case?
The consolidated lawsuit contains three different groups of plaintiffs, not all of whom are challenging every law.
- Montana Democratic Party plaintiffs: Montana Democratic Party and a Montana voter with disabilities
- Western Native Voice plaintiffs: 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
- Montana Youth Action plaintiffs: Montana Youth Action, Forward Montana Foundation and Montana Public Interest Research Group
All three lawsuits were filed against the same defendant: Montana Secretary of State Christi Jacobsen (R).
What laws does the case challenge?
During the trial, the plaintiffs are challenging three separate laws for violating the Montana Constitution. For the sake of simplicity, throughout this Case Watch we talk about the challenged laws in the aggregate without specifying which plaintiff is challenging which law.
H.B. 176 changes the deadline to register to vote from the close of polls on Election Day to 12 p.m. the day before Election Day, eliminating the ability of Montanans to register to vote on Election Day itself. Previously, voters could register to vote in person at a county elections office on Election Day and cast their ballots at the same time.
S.B. 169 adds more restrictions on acceptable forms of ID for both voter registration and in-person voting. While Montana has had an ID requirement to register since 2003, voters could previously prove their identity with
- A Montana driver’s license,
- The last four digits of their Social Security number,
- Any valid photo ID (such as a passport, student ID or tribal identification card) or
- Any official document showing their name and current address.
Now, under S.B. 169, the only sufficient forms of ID are a Montana driver’s license or ID card, the last four digits of a voter’s Social Security number, a military ID, a tribal ID, a passport or a Montana concealed carry permit — notably, IDs commonly held by young voters like a student ID are no longer adequate. If a voter does not have one of these forms of ID, they have to present another form of photo ID and an official document showing their name and address. Additionally, confirmation forms that voters receive when they register are no longer acceptable proof of ID when voting — even though voters have to show the required IDs to get the confirmation forms in the first place.
Finally, H.B. 530 places new limits on who can return a completed absentee ballot. After Montana gave all voters the ability to vote by mail in 1999, multiple civic and political organizations began offering services to help voters return mail-in ballots to election officials. H.B. 530 jeopardizes these services by banning ballot assistance in exchange for a “pecuniary benefit” — which is undefined in the law, but generally is understood to mean monetary payment in the form of wages. As a result, paid employees of organizations that assist voters may be banned from “distributing, ordering, requesting, collecting, or delivering ballots.”
How do the laws impact voters?
Voters in Montana have been able to register and vote on Election Day since 2005 and have come to substantially rely on that option. Since then, 60,000 people have registered on Election Day and the number of people registering on Election Day has increased with every election cycle. In 2014, when given a chance to change the registration deadline via a ballot measure, voters overwhelmingly rejected it. Election Day registration also gives voters an opportunity to correct errors with their voter registration that often occur without any advance notice — 40% of voters who use it are not new registrants, but rather had errors in their registration that Election Day registration allowed them to correct before casting their ballots. Election Day registration is also easier for many voters than registering on other days since there are greater resources available to assist them. Eliminating this option risks disenfranchising thousands of voters and making registering more difficult.
Changing the registration deadline will have a particularly pronounced impact on Native American voters and young voters. Due to the lack of reliable mail service on Native American reservations and their geographic isolation, the number of Native Americans who used Election Day registration compared to the Montana population as a whole is statistically significant. Young voters also take advantage of Election Day registration at greater rates than other demographic groups since they move more frequently and are less aware of rules and deadlines for registering to vote.
The new restrictions on voter IDs will make it harder for Montanans to vote. As one of the complaints notes, the list of acceptable IDs is “dramatically reduced, and voters must navigate a confusing list of ands and ors to ensure their ability to register to vote. Many will be unable to comply with this new burden.” The burden will fall particularly hard on young voters since the law specifically excludes student IDs from the list of sufficient IDs, even though concealed carry permits are included as acceptable. If young voters want to use their student IDs, they will also have to present other documentation like a utility bill with their name and address, which may be difficult or impossible to obtain, especially if these voters live in a dorm or with their parents.
Many disadvantaged voters, such as Native American voters, young voters, low-income voters, elderly voters and voters with disabilities rely on ballot assistance programs to vote. These voters face many barriers when returning their absentee ballots and instead have turned to trusted civic and political organizations to transport sealed ballots to elections offices or ballot drop-off sites. The ballot assistance ban eliminates a vital tool these voters use to ensure they aren’t disenfranchised.
The impact of this ban on Native American voters is especially severe. Without access to regular mail service or adequate transportation, many voters on tribal reservations rely on paid ballot collectors to return completed ballots to election offices. Additionally, ballot assistance is the centerpiece of get-out-the-vote (GOTV) operations on reservations — in 2018, nearly 10% of absentee ballots from Native American voters were returned by civic organization staff. The ballot assistance ban may make it illegal for these types of GOTV programs to exist on reservations in Montana.
What are the plaintiffs arguing?
- The plaintiffs’ overarching argument is that the three laws at issue make it harder to vote without any legitimate justification. The bills’ Republican sponsors claimed the measures were needed to combat voter fraud and make Montana elections more secure, but they could not point to any actual instances of fraud. As the plaintiffs repeatedly note, “there is no evidence of a single instance of fraud or genuine administrative problems resulting from the administration of elections in Montana under prior law.” Instead, the plaintiffs argue, the laws are nothing more than “the latest round of legislative shadowboxing aimed at imaginary threats to election integrity…weaponized by the Legislature to impede access to the franchise.”
- The Montana Constitution, unlike the federal one, has an explicit right to vote, prohibiting the state from “interfer[ing] to prevent the free exercise of the right of suffrage.” Eliminating Election Day registration, restricting acceptable IDs and banning ballot assistance, the plaintiffs argue, all violate the right to vote by creating barriers to voting for many different groups of people and make “it harder for certain groups of voters…to participate in our democracy.” Since the laws burden a fundamental right, this triggers the highest level of scrutiny — requiring the laws be justified by a compelling state interest. Because the laws aren’t justified by any legitimate reason, they violate the state constitution.
- The plaintiffs also allege that all three laws violate the Montana Constitution’s guarantee of equal protection of the laws, meaning that laws must treat similarly situated people equally. By placing unequal burdens on voting for different groups of Montanans, particularly young voters and Native American voters who are more likely to rely on Election Day registration and ballot assistance programs and use certain types of ID, the laws violate equal protection.
- Additionally, the ballot assistance ban is alleged to violate several additional parts of the state constitution. The plaintiffs contend that ballot assistance programs are a form of constitutionally protected speech by political and civic organizations. The ban thereby violates the state constitution’s protections of speech and expression. Furthermore, because the ballot assistance ban is vague and requires the Montana secretary of state to determine what the law means, the law also violates the right to due process and represents an unconstitutional delegation of legislative power.
What is the defendant arguing?
- The Montana secretary of state, in her official capacity, raises a number of arguments about why the plaintiffs’ claims should not be accepted by the court. She alleges that the plaintiffs fail to raise an issue that a court can remedy, fail to establish they’re entitled to relief and lack standing to make claims. She also argues the claims are not justiciable (suitable for the court to rule on) and precluded by past legal decisions.
- She additionally argues that none of the challenged laws violate the cited provisions of the Montana Constitution. According to her, because the plaintiffs fail to prove a discriminatory intent behind the laws and fail to demonstrate a disparate impact on any protected groups, the laws are neutral and nondiscrimintory. She also rejects the allegation that the laws are not supported by a legitimate reason.
- Most interestingly, the defendant also argues that the Elections Clause of the U.S. Constitution prohibits state courts from overriding the laws, invoking the fringe independent state legislature theory that the U.S. Supreme Court will consider during its upcoming term. Allegedly, the “relief Plaintiffs seek would violate the U.S. Constitution.”
What has happened so far?
Even though the cases haven’t reached a trial yet, a lot has already happened.
- After the Montana Democratic Party filed its lawsuit in April 2021, the secretary of state sought to have the case thrown out by filing a motion to dismiss. She argued that the Montana Democratic Party lacked standing, failed to present facts or a legal theory to support their claim, that the Montana Constitution gives the Legislature discretion over Election Day registration and that the Elections Clause of the U.S. Constitution prevents the court from overturning the challenged laws. In November 2021, the judge denied the motion, rejecting all of the secretary of state’s arguments.
- After the motion to dismiss was denied, the Montana Democratic Party’s lawsuit was consolidated with those of Montana Youth Action and Montana Native Voice. In January 2021, the plaintiffs filed motions for a preliminary injunction to block the laws while the litigation continued. The judge granted the motions on April 6, 2022, temporarily blocking the laws from being enforced. The secretary of state appealed this decision to the Montana Supreme Court, which reinstated H.B. 176 (the restriction on Election Day registration) and S.B. 169 (the voter ID restrictions). The state Supreme Court agreed with her that, since these laws were in effect during last year’s elections, reinstating them “would cause less voter confusion and disruption of election administration.” The appeal of the preliminary injunction is currently pending before the Montana Supreme Court.
- While the court was considering the motions for preliminary injunctions, the secretary of state filed a motion for summary judgment asking the judge to rule on the cases without a full trial. In response, the Montana Youth Action plaintiffs filed their own motion for summary judgment in relation to just one of the challenged laws, H.B. 506. On July 27, the judge rejected the defendant’s motion for summary judgment. At the same time, the judge ruled in favor of the Montana Youth Action plaintiffs motion and permanently blocked H.B. 506, finding it “severely interferes” with the right to vote for Montanans who turn 18 in the month before an election. All of the plaintiffs’ other claims are headed for trial.
A trial in the case is scheduled to begin on Aug. 15 before Judge Michael Moses of Montana’s 13th Judicial District Court. Since the cases have been consolidated, all of the plaintiffs will present their arguments, evidence and witnesses to the judge at once. The trial will not be streamed or recorded, but we’ll update you with any significant developments. At the end of the trial, Moses will decide if the three challenged laws violate the Montana Constitution.