Secretary of State: Voting rights lawsuit should be dismissed

Reply says Democrats lack standing, only offer theoretical problems without proving them

By: - June 9, 2021 5:38 pm

Attorneys for Secretary of State Christi Jacobsen have filed a response to a lawsuit brought by the Montana Democrat Party and resident Mitch Bohn, arguing the case should be dismissed because it lacks any specific examples of how two recently passed voting laws in Montana would harm residents’ constitutionally-protected suffrage.

The lawsuit, filed in Yellowstone County Court, challenges Senate Bill 169 and House Bill 176. SB169 changed Montana’s same-day election registration, pushing it back to the day before Election Day. HB176 changed the forms of identification needed to register to vote. Previously, the Montana Democratic Party argued that these new changes disenfranchised voters, and unduly challenged college students, those living on reservations, the elderly and the disabled.

However, a response by the Solicitor General David Dewhirst and attorneys Austin James and Dale Schowengerdt argues that the party lacks standing and only theorizes harm without showing any proof.

“The Montana Democratic Party filed this lawsuit in a last-ditch effort to do what it couldn’t do at the ballot box or before the Legislature,” the response brief says.

Lawyers for the Secretary of State point out that both the U.S. and Montana constitutions instruct the Legislature to make laws about elections. Further, it points out that from 1972 through 2005, there was no same-day voter registration.

The brief in response also said that the Montana Democratic Party’s claim that it targets college-age voters by not allowing voter identification ignores that college-issued IDs can be still be used, just not as the only form of verification. Moreover, lawyers for Jacobsen also said that if the laws affect voters, they wouldn’t seem to harm one group more than the other. In other words, Democrats have not proven the law would target a group of Democrat voters any more so than Republicans.

The lawsuit is peppered with jabs at the Democrats, asserting that after unsuccessfully trying to win more seats in the election of 2020 and in lieu of making compelling arguments that would influence lawmakers, the Democrats are resorting to the courts to pressure them into agreeing.

“A political party’s defeat on an issue of legislative policy generally does not provide standing for opportunistic litigation, regardless of the merits of the legislation,” the court filing reads.

Moreover, attorneys said that the Democrats lack standing to bring the lawsuit, and therefore it must be dismissed.

“MDP does not allege a violation of its own constitutional rights. Nor can it. It is not a voter,” the brief reads. “Because it has no constitutional right to vote that may be infringed, it lacks standing to sue on its own behalf.”

Jacobsen’s trio of attorneys also claim that Democrats have not proven that the new laws disadvantage one particular group more than any other.

“Neither SB 169 nor HB176 is facially discriminatory, and MDP has not alleged facts to support a claim of intentional discrimination. Thus, MDP’s equal protection argument fails,” it reads.

Calling the Montana Democrat Party’s allegations “fact-free,” lawyers said that federal courts have repeatedly said that being inconvenienced is also not an impediment to the right to vote.

“MDP’s effort — nearly fifty years after the fact — to rewrite the Constitution is, at best, poor textual analysis. At worst, it’s a thin attempt to induce this court to give MDP a policy victory it lost at the Legislature,” the brief said.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.