Election-day voter registration back on as Montana Supreme Court reverses preliminary ruling

New ruling amid multi-pronged election administration litigation also blocks new voter ID requirements adopted by the 2021 Montana Legislature.

By Alex Sakariassen MONTANA FREE PRESS

The Montana Supreme Court released an opinion Wednesday reinstating Election Day voter registration and blocking new voter identification requirements in advance of this year’s Nov. 8 general election.

The opinion, authored by Justice Laurie McKinnon and concurred by three other justices, upheld an injunction issued by Yellowstone County District Court Judge Michael Moses in March, which had barred Montana Secretary of State Christi Jacobsen from enforcing two laws passed by Republican legislators last year. Those laws — House Bill 176, which ended Election Day voter registration, and Senate Bill 169, which imposed new photo ID requirements for voters at the polls — are at the center of a consolidated lawsuit alleging they violate Montanans’ constitutional right to vote. 

Jacobsen, a Republican and the state’s top election administrator, is the defendant in that case. Plaintiffs include the Montana Democratic Party, Western Native Voice, Montana Public Interest Research Group (MontPIRG), Montana Youth Action and four tribal governments.

The Supreme Court’s opinion marks the third time this year that Montana courts have shifted the active rules governing Montana elections as litigation over the new election administration laws moves through the courts. Moses’ injunction, which also blocked a law prohibiting paid ballot collection, remained in effect through May school board elections.

The month before the June primary, however, the Supreme Court temporarily stayed the injunction while it considered an appeal from the Secretary of State, putting the no-election-day registration and photo ID laws back in effect. Now those laws are once more on hold with the general election approaching.

Moses presided over a nine-day trial in the case last month. He has not yet issued a final ruling.

“Obviously we are cautiously optimistic that this is a step in the right direction in terms of equaling the playing field for Native voters across Montana,” Western Native Voice Political Director Keaton Sunchild told Montana Free Press Wednesday. “We’re hoping that this is a chance to put the legal proceedings behind us for good and start working on getting as many people to the polls, one way or another, as possible.” 

Sunchild further noted that his organization has been fighting against election laws it considers harmful to Native voters for “the better part of three years,” including a previous ban on paid ballot collection.

“This is a victory for Montana voters and especially for students and young Montanans more broadly,” MontPIRG Executive Director Hunter Losing said in a statement. “Young people use Election Day Registration at twice the rate of older Montanans. We will be working hard for great turnout in November.”

The Montana GOP criticized the decision, calling the measures “common sense election integrity laws” and accusing the supreme court of “liberal bias” in a Tweet.

Jacobsen’s office did not immediately respond to a request for comment on the ruling Wednesday afternoon.

Republicans have generally argued the new laws are necessary to bolster voter confidence and guard against voter fraud. Opponents have contended the laws unduly burden Montanans as they seek to exercise their right to vote, especially Native Americans and younger voters.

Wednesday’s opinion revisited much of the debate around the contested laws, including the lower court’s finding that the voter ID law targeted a single class of voters — young people — in requiring that student IDs be accompanied by a second form of identification. McKinnon also wrote that the state hadn’t presented enough evidence to justify overturning the lower-court order reinstating election-day voter registration.

“At this stage of proceedings, the Secretary has not demonstrated clear error in the district court’s finding that HB 176 unconstitutionally burdens the fundamental right to vote by eliminating a widely used and relied on voting option — particularly by Native Americans — thereby increasing the difficulty of some Montanans to vote,” McKinnon wrote.

McKinnon and the concurring justices, Mike McGrath, Jim Shea and Ingrid Gustafson, emphasized several times that the opinion addressed only the lower court’s decision to grant the injunction and not the underlying issues in the case itself. Once Moses makes a final ruling there, the Secretary of State will have the option of appealing it to the Supreme Court.

Justices Jim Rice and Dirk Sandefur dissented from Wednesday’s opinion, arguing that the lower court erred in its decision to block the laws and stating they would opt to reverse Moses’ injunction. The court’s seventh justice, Beth Baker, split on the issue, concurring with McKinnon’s opinion on the voter ID bill but dissenting on the election-day registration ban.