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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.

Out of State; Out of Luck?

Election Law Society · January 1, 2020 ·

By: David Maley

Democrats in New Hampshire are fearful of the ramifications of newly implemented House Bill 1264. The bill went into effect July 1, 2019 and has stoked the ire of Democrats over the removal of four simple words (“for the indefinite future”) from the definition of resident. In essence, Democrats are perturbed by the textual edit as it alters the meaning of residence which could, in turn, have dramatic implications for out-of-state college students who would like to participate in New Hampshire elections.

[Read more…] about Out of State; Out of Luck?

How to Help the Homeless Vote in Hawaii

Election Law Society · November 15, 2017 ·

By: Avery Dobbs

The state of Hawaii has had the lowest voter turnout rate in the country in the past five presidential election cycles. While the reasons for low turnout rates are nuanced and multifactor, it is safe to say that at least part of the problem is inaccessibility of the polls for Hawaii’s many homeless residents. Hawaii currently has the highest rate of homelessness per capita in America with over seven thousand homeless residents in the state. Homeless residents are extremely vulnerable to public regulations but often have a limited say in decision making due to impediments to voting while homeless. While the only legal requirements for voting in Hawaii are 1) being properly registered to vote, 2) being a U.S. citizen and resident of Hawaii, and 3) being over the age of 18, the issue for homeless voters is how to register to vote without having an address or a photo ID. [Read more…] about How to Help the Homeless Vote in Hawaii

California Secretary of State Certifies VoteCal Ahead of 2016 General Election

Election Law Society · October 26, 2016 ·

By: Chelsea Brewer

On September 26, 2016, the California Secretary of State, Alex Padilla, announced that he certified VoteCal as the State’s centralized system of record for voter registration. The online database seeks to ease the voter registration process by providing citizens a single online database where they can register to vote, check their registration status, find their assigned polling places, and more. Just in time for the November 2016 General Election, voters will even be able to confirm that their absentee mail-in ballot or provisional ballot was counted by their respective county elections officials. This is especially significant given states’ interest in preserving voter confidence in electoral administration in the face of skepticism about whether all votes are actually counted. VoteCal will also facilitate upcoming innovations in California election law after the November General Election, which include Election Day voter registration and the New Motor Voter Act.

[Read more…] about California Secretary of State Certifies VoteCal Ahead of 2016 General Election

Two Letters, The National Voter Registration Act, and Voter-ID in Nebraska

Election Law Society · December 2, 2015 ·

By: Eric Sutton

On September 22, the Omaha World Herald published a story about two letters sent to seven Nebraska counties threatening lawsuits for voter registration irregularities. In particular, the letters alleged that the Nebraska counties of Wheeler, Loup, Kimball, Thurston, Hooker, Keya Paha, and Thomas have more registered voters than individuals of voting age. While the groups behind the letters argue that the threat of suit is designed to prevent voter fraud through effective maintenance of voter registration records, an examination of the Nebraska Legislature’s most recent session, and the past of the two organizations responsible for the letters, indicates that these letters may provide the foundation for a renewed push for voter-ID in Nebraska.

[Read more…] about Two Letters, The National Voter Registration Act, and Voter-ID in Nebraska

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