Montana

Montana Supreme Court Upholds Preliminary Injunctions on State Laws Restricting Use of Student Identification and Ending Election Day Registration

Election Law Society · March 10, 2023 ·

By Kate Pollard

On September 21, 2022, the Montana Supreme Court upheld a preliminary injunction prohibiting Montana Secretary of State Christi Jacobsen from enforcing two election laws enacted during the 2021 Montana Legislative Session. The first, Senate Bill 169 (SB 169), eliminated student identification as a sufficient form of identification for voting purposes without additional supporting documentation. The second, House Bill 176 (HB 176), eliminated Election Day Registration in Montana, moving the deadline to noon the day before. The Plaintiffs in the case included the Montana Democratic Party, Western Native Voice, Montana Public Interest Research Group, Montana Youth Action, and four tribal governments.

The Montana Supreme Court declined to rule on the proper way to balance the fundamental right to vote with the legislature’s power to administer elections because the issues appeared in the context of upholding or vacating a preliminary injunction. The Court found that because an argument on the merits was not before them, such a ruling was premature. Instead, the Court focused their inquiry on whether the plaintiffs made a prima facie case that SB 169 and HB 176 would cause them irreparable harm by unconstitutionally burdening their fundamental right to vote. In reaching their conclusion, the Montana Supreme Court looked at the evidence before the District Court to determine it did not abuse its discretion in issuing the preliminary injunction.

In regards to SB 169, Plaintiffs presented expert testimony that the measure imposed a burden on college students and out-of-state students, as these groups are less likely to possess the requisite supplemental forms of identification. The District Court did not find the Secretary’s argument persuasive that the use of student identification contributed to instances of voter fraud, as none of the instances pointed to involved the use of such identification. The Supreme Court upheld the injunction because the District Court properly found, at this stage in the litigation and given the evidence before it, that SB 169 targets one class of voters—young people, and students from out-of-state in particular—and would disproportionately impact and violate their right to vote.

As for HB 176, which eliminated the option for voters to register on Election Day, the Montana Supreme Court similarly considered the evidence before the District Court in upholding its preliminary injunction on the enforcement of the statute. Substantial testimony was presented on the importance of Election Day voter registration, particularly amongst Native American voters. Native Americans living on reservations face significant barriers to voting such as long distance and limited access to transportation. The Plaintiffs presented expert testimony that, because of such barriers, Native Americans living on reservations are particularly reliant on election day registration and use it at a consistently higher percentage than other voting groups. The elimination of this option, therefore, would disproportionally impact them negatively.

The main counterargument from the Secretary was that Election Day Registration posed a burden on election staff and resulted in longer lines at the polls. However, testimony was presented on both sides as to this point, with the District Court ultimately concluding that based on the evidence of voter reliance on registering on Election Day, HB 176 would eliminate an important voting option for Native Americans. Consequently, HB 176 would cause plaintiffs irreparable harm by unconstitutionally burdening their right to vote. After considering the evidence before it, the Supreme Court did not find the Secretary demonstrated the requisite clear error in the District Court’s conclusion HB 176 would unconstitutionally burden the fundamental right to vote by eliminating this popular and relied upon voting option—especially by Native Americans. As a result, the preliminary injunction was upheld on this statute as well.

Finally, it is important to note that this decision just pertained to whether the District Court erred in issuing a preliminary injunction against enforcement of these two statutes while the District Court judge deliberates as to a permanent one. Attorneys for both sides argued the merits of the case in front of the lower court during a two-week long trial in August. The judge is expected to issue a final ruling soon, at which point either side will likely appeal the case once more to the Montana Supreme Court.

Is the Montana Disclose Act in the Supreme Court’s Crosshairs?

Election Law Society · December 28, 2022 ·

By Lucas Della Ventura

From George Washington’s warnings of the danger of corruption to “drain the swamp,” the influence of large sums of money in the pockets of politicians and their campaigns have concerned Americans throughout the nation’s history. In Citizens United v. FEC, the Court breathed life into Thomas Jefferson’s forewarning that the judiciary would enable corruption: “The engine of consolidation will be the federal judiciary; the two other branches the corrupting and corrupted instruments.” With the removal of limitations on corporate “independent” expenditures, the Court tied the state governments’ hands in enacting and enforcing state laws restricting campaign contributions. The modern era of unlimited corporate campaign spending was birthed, seeing a 900% increase in campaign spending by corporations and other outside groups. From 2010 to 2018, Super PACs, also offspring of Citizens United, are estimated to have spent $2.9 billion on federal elections. According to OpenSecrets.org, the leading website that tracks money in politics, so-called “dark money” groups (organizations that spend money from undisclosed sources) have spent roughly $1 billion — mainly on television and online ads and mailers — since Citizens United was decided.

Although the Court in Citizens United struck down limitations on “independent” expenditures, all of the Justices, save Thomas, approved of strong disclosure regulations. Justice Kennedy stated, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” In reaction to Citizens United and the flood of corporate and dark money entering into not only presidential elections, but also local elections, states like Montana, enacted comprehensive disclosure regimes. These state disclosure regimes have remained largely unscathed in the election law context, but not in others. The Supreme Court recently struck down a California regulation that required charities known for their conservative political activism and campaign financing, to disclose to the California Attorney General’s Office IRS forms containing the names and addresses of their major donors. Notwithstanding that the case focused on a state’s governmental interests in investigating charitable misconduct and the state’s lack of narrow tailoring, the decision put on alert states like Montana that have strong campaign finance disclosure regimes.

Montana, the frontier state heralding the motto “Oro y Plata” (Spanish for gold and silver), sees itself at the frontier of legal challenges seeking to reshape how the wealth of the nation is treated by campaign finance and disclosure regimes across the country. Since 2015, the Montana Disclose Act has withstood several such tests. In 2018, Montanans for Community Development v. Mangan, Montanans for Community Development (MCD), a 501(c)(4) that sought to send electioneering communications (issue advertisements, also known as “mailers”) refused to disclose its donors in accordance with Montana law. MCD’s two mailers at issue attacked environmentalists and encouraged fossil fuel industry promotion, mentioning candidates in upcoming Montana elections. The 9^th Circuit upheld the district court’s finding that the disclosure requirements survive exacting scrutiny by serving a sufficiently important informational interest and being substantially related to the state’s interest.

The 9th Circuit elaborated on its stance regarding disclosure laws in NAGR v. Mangan, another challenge to Montana’s state disclosure requirements. The court cited to Citizens United in championing the information enhancing role disclosure laws play by stating, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The court added, “Far from restricting speech, electioneering disclosure requirements reinforce democratic decision making by ensuring that voters have access to information about the speakers competing for their attention and attempting to win their support.”

Even though the U.S. Supreme Court denied cert in both Montana cases, the Supreme Court’s lurch to the right and recent decision in AFP v. Bonta may spell danger to state efforts to achieve transparency in elections and protect the compelling informational interests provided by electioneering disclosures.

Montana: Changes To Voting Laws In Wake of 2020 Election

Election Law Society · March 23, 2022 ·

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.

Ballot Collection Limitation Law Struck Down by Montana Courts

vebrankovic · November 20, 2020 ·

By Cody McCracken

As occurs every few years, this past November millions of people cast their votes for a wide range of offices. However, a major difference this year was that many of these voters cast their ballots in a way they may have never done so before—by mail. The ongoing COVID-19 pandemic has forced nearly all states to expand their absentee voting and early voting procedures. Yet, even before COVID, voters in Montana routinely voted well before election day.

While not a fully mail-in voting state, such as Washington and Oregon, Montana has robust mail and early voting accommodations that a majority of voters take advantage of. In Montana’s 2018 general election, 73 percent of the votes cast were by absentee ballot sent in before election day.

Red Light for the Green Party in Montana

Election Law Society · October 14, 2020 ·

By Cody McCracken

This November, Montana voters will fill out their ballots for federal, state, and local elections. For nearly all these races, voters will only have two choices – the Democratic Party candidate or the Republican Party candidate. While this seems quite ordinary in our two-party dominated political system, which parties will be on the ballot has been the subject of contentious electioneering and court battles for months.

These disputes stemmed from whether a minor party, the Green Party, would grace Montana’s ballots for the 2020 election. In past elections the Green Party was included on ballots and it appeared they would once again as Green Party candidates initially qualified for most statewide races including the marquee races for the state’s U.S. Senate seat and Governor. However, the strange part of this story begins with the fact that the Montana Green Party was not trying to get on the ballot and fielded no candidates for elections this year. The “Green Party” candidates initially on the ballot had seemingly no connection to the party.