HELENA — The Montana Supreme Court has struck down four election-related regulations passed by the 2021 Legislature, ruling they violated the fundamental right to vote.
Justices were significantly split in the case, publishing four separate opinions. In the end, however, four out of seven justices agreed all four of the provisions were unconstitutional – and for each individual provision, a group of at least five justices were in favor of overturning it.
Chief Justice Mike McGrath, writing the majority opinion, said the Montana Constitution guarantees strong protections for the right to vote.
He said that while the Legislature has the authority to pass laws regulating elections, the court has a duty to review those laws and make sure they preserve that right.
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“[A]lthough the Legislature is given power regarding elections, it may not exercise that authority in a way that violates the freedom and openness of our elections or interferes with the free exercise of the right of suffrage,” he wrote.
The four bills at issue in this case were:
- House Bill 176, which eliminated Election Day voter registration for most Montanans and closed the late registration window at noon the day before an election.
- House Bill 506, which said someone who had not yet turned 18 but would be 18 before Election Day could not receive an absentee ballot.
- One section of House Bill 530, which directed the Secretary of State to create rules prohibiting anyone from accepting payment to collect absentee ballots.
- Senate Bill 169, which required additional identification for people using student IDs to vote.
Courts consolidated a series of lawsuits challenging those bills, from plaintiffs that included the Montana Democratic Party, four tribal governments and Native and youth voting groups. In 2022, a district court judge in Billings ordered the state not to enforce the bills, in two separate rulings.
McGrath said HB 176 was unconstitutional because the state hadn’t shown eliminating Election Day registration was the least restrictive way to accomplish their goals of reducing the burden on elections staff and ensuring election integrity. He said the bill needed to be looked at with strict scrutiny because thousands of Montanans used Election Day registration – 70,000 since 2005 and more than 8,000 in 2020 – and many likely wouldn’t have been able to vote without that system.
“The Secretary’s contention that it is otherwise easy to register before election day does nothing to dispel these conclusions—these people will be disenfranchised without the “final safeguard” of election day registration,” McGrath wrote.
McGrath said HB 506 was unreasonable and arbitrary because it prevented those who would be eligible to vote on Election Day from using the same voting method that the majority of Montanans use. He said HB 530 would particularly impact voting for Native Americans living on reservations, that there wasn’t evidence of fraud connected to ballot collection and that a narrower law could have addressed concerns about collectors coercing voters to give them their ballots.
McGrath wrote that SB 169 would put a minimal burden on college students voting, but that the state hadn’t shown why excluding student IDs from a list of primary photo IDs was necessary – especially since the determination of whether someone is eligible to vote is made when they register, not when they go to the polls.
Justices Ingrid Gustafson, Laurie McKinnon and Jim Shea joined McGrath’s majority opinion. Gustafson wrote her own concurring opinion, joined by McKinnon, in which she argued HB 506 was even more burdensome on the right to vote than McGrath had said.
Justice Dirk Sandefur wrote a dissenting opinion, joined by Justice Jim Rice, in which he sharply criticized the majority for making what he called an “unsupported assertion” that the state constitution provided a broader protection of the right to vote than the U.S. Constitution. He said that led to a “cascading analytical sleight of hand” that led them to use the wrong legal standard and interfere with the Legislature’s legitimate lawmaking authority.
“[I]n 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.
Sandefur said he did agree, however, that HB 506 was unconstitutional.
Justice Beth Baker wrote her own dissent, saying she agreed with the majority on HB 176, HB 530 and SB 169, but that she would not have struck down HB 506, which she said put a minimal burden on a very small subset of voters. She added that the bill would have a bigger impact if Election Day registration wasn’t available for these young voters, but the court’s ruling on HB 176 eliminated that concern.
Three of the plaintiff organizations – Montana Youth Action, Forward Montana Foundation and MontPIRG – released a statement praising the Supreme Court’s action on HB 176, HB 530 and SB 169.
“This is an enormous victory for young people in Montana,” said Kiersten Iwai, Forward Montana Foundation’s executive director. “The youth vote is essential to effective participatory democracy—we vote to build a better future and we will not be silenced.”
The ACLU of Montana shared a statement on behalf of the Native American organizations and tribes who challenged HB 176 and HB 530.
“Today’s decision is a resounding win for tribes in Montana who have only ever asked for a fair opportunity to exercise their fundamental right to vote,” said Jacqueline De León, a staff attorney for the Native American Rights Fund. “Despite repeated attacks on their voting rights, Tribes and Native voters in Montana stood strong, and today the Montana Supreme Court affirmed that the state’s legislative actions were unconstitutional. Native voices deserve to be heard and this decision helps ensure that happens.”
Richie Melby, a spokesperson for Secretary of State Christi Jacobsen’s office, said in a statement that they were disappointed in the ruling.
“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,” he said. “The Montana Constitution guarantees that citizens have the right to accessible and secure elections. State and county election officials have been punched in the gut.”
