By: Kelsey Nickerson
Montana is one of the largest states in the county, but unlike its counterparts Texas and California, it is home to relatively few people and only accounts for 3 electoral votes. The state had some close elections as of late, and with a relatively small population, a small number of votes can play aa large part in election results. As in most states, the 2020 Election inspired Montana to enact much more stringent voting laws relating to registration, identification, and absentee voting. Many of these laws, despite the obvious problematic result of disenfranchisement of indigenous voters, were upheld under Section 2 of the Voting Rights Act in the Supreme Court’s decision in Brnovich v. Democratic National Committee this past summer. In Montana, however, a new group has challenged the restrictive bill: young voters.
HB 506, along with instating various redistricting criteria, requires that “[u]ntil the individual meets residence and age requirements, a ballot may not be issued to the individual and the individual may not cast a ballot” via mail. Though it may seem like a reasonable limitation to place on mail-in voting, it does burden a certain portion of the population. Young people, whose participation has surged in Montana over the past few years, object to stringent absentee requirements that target both their age and transient nature. For example, young Montanans who will be 18 and eligible to vote on Election Day, but will not reach that age before the extremely early deadline to request a mail-in ballot, are prevented from voting if they can’t return to their district on Election Day. Additionally, residency requirements require 30 days of presence in a new location before an absentee ballot may be requested. With large portions of teens in Montana moving both away from home and out of state in the fall, there is little room for error in requesting an absentee ballot, and sometimes the request is impossible.
In response to the bill, Montana Youth Action, Forward Montana Foundation, and the Montana Public Interest Research Group have filed a complaint in Montana state court. Citing the Montana Constitution’s Declaration of Fundamental Rights, the complaint argues that this abridgement of the right to vote denies young adults denies them the power of popular sovereignty “vested in and derived from the people.” What’s more, they argue that the Montana Constitution states “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Because a similar framing of voting rights triggered strict scrutiny in the Montana courts, it’s fair to assume that it might similarly happen here, and the law provisions in question struck for substantially burdening the youth vote.
If the state law claim fails, it is also worth considering whether this law places enough of a burden on these young adults to violate their 14th Amendment rights. Under Crawford v. Marion County Election Board, which challenged the constitutionality of Indiana’s strict and burdensome voter ID requirements, the Court would use Anderson-Burdick balancing to determine if this bar to certain young voters outweighs a state interest in fraud prevention. Though it remains a flexible test, Crawford and other applications point towards a deference to Montana’s interest. Additionally, as in Crawford, the burden here would likely be considered small. In Justice Souter’s dissent, it was noted that the law was likely to burden about 43,000 people in Indiana. Here, the number is arguably much smaller (the plaintiffs do not give an estimate in their complaint). The barriers are also similar to those in Crawford, finding transportation to the polls if an absentee ballot is unavailable and obtaining a new ID, and it seems unlikely that an early deadline for absentee ballot requests would be given any more weight significant enough to tilt the balance. Though nebulous and unsubstantiated, the Court has been highly deferential to states’ concern of fraud, and so ultimately, it seems near impossible for this law to be struck down for its burdensome aspects.
Perhaps stronger is the argument that HB 506 violates the 26th Amendment. Voting laws across the US have been similarly restrictive to young voters, who perhaps not coincidentally, tend to greatly vote Democratic. A recent Texas law was even more restrictive, allowing only absentee ballots for voters ages 65 and older without excuse. The initial 26th Amendment claim led to an injunction which was promptly overturned by the 5th Circuit. When appealed to the Supreme Court, certiorari was denied. Justice Sonia Sotomayor filed a brief regarding the denial, stating that recent age-restrictive laws’ “application[s] raise weighty but seemingly novel questions regarding the Twenty-Sixth Amendment,” and despite emergency reasons for these laws, if post-COVID bars remain in place, the issue should be examined by the Court. If the Montana Courts fail to strike these age requirements, it’s very possible that this or another bill relating to youth disenfranchisement will be taken up by the Court.
Coupled with stricter voter identification requirements that disallow the use of student IDs at the polls, this law could drastically reduce turnout of young voters who have been increasingly exercising their right to vote in recent years. As the pandemic slowly abates, the Court will be left with a whole host of questions, including this very one, of how constitutional emergency COVID-related restrictions apply during a normal election.