Montana

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.

Nonpartisan Election Laws Challenged in Montana

Election Law Society · January 13, 2017 ·

Before the 2016 election season even concluded, the 2018 campaign season for one small Montana community had already started heating up. Robin Benson, the Clerk and Recorder of Lincoln County, a small county of less than twenty thousand people, announced on October 18, 2016, in a lawsuit filed in the U.S. District Court of Montana, that she plans on running for reelection in 2018. In the suit, Ms. Benson challenges Montana’s nonpartisan election laws as a violation of candidates’ free speech rights.