Secretary of State: Dismiss Democrats’ lawsuit challenging new voter laws

Attorneys argue the political party has no standing and new laws don’t affect Dems more than any other group

By: - July 16, 2021 4:16 pm

A voting sign in California (Photo by Tom Arthur/Wikimedia Commons CC-BY-SA 2.0)

Attorneys for the State of Montana argue that a Yellowstone County Judge should toss out a lawsuit filed by the Montana Democratic Party that challenges changes to voter registration and election laws because the political party lacks standing and has failed to prove the law disenfranchises voters.

Meanwhile, attorneys for the Montana Democratic Party say the new rule strikes at the heart of their mission and those of their members — to get Democrats elected statewide.

“Montana Democratic Party does not allege a violation of its own constitution rights. Nor can it. It is not a voter,” attorneys for Montana Secretary of State Christi Jacobsen allege.

Jacobsen is being represented by Solicitor General David Dewhirst, Austin James, who is chief legal counsel for the Secretary of State, and Dale Schowengerdt and David Knobel of Crowley Fleck in Helena.

They argue that the Montana Democratic Party also cannot sue because the case alleges that the new laws disproportionately affect elderly, disabled, college students or some living in rural areas. But not all members of those groups are Democrats.

“MDP is wrong to imply that one’s political destiny is determined by membership in a particular demographic: Members of these groups are individuals who think and vote differently,” the response said.

It said that Democrats cannot prove that non-Democrat students are more likely to have acceptable forms of identification than Democrat students. The new law changed, in part, what forms of identification are acceptable. It also pushed election registration from same-day to the day before election at noon.

The response also said that the Legislature has both the right and responsibility to set requirements for voting and election, noting that same-day voter registration was not implemented until 2005, and after the adoption of the new state constitution in 1972, the deadline for voting was set as early as 40 days before Election Day.

“If MDP had its way, every law and policy regulating suffrage would be subject to strict scrutiny,” attorneys for Jacobsen argue. “Does it violate equal protection to allow Montanans to vote by mail? Surely not, even though the indigent may be less likely to have access to residential mail, and arguably such laws make it easier for the middle and upper classes to vote.

“Similarly, if the state were to refuse to accept mail ballots, rural voters may be at a disadvantage because they would have to travel farther to access a polling place.”

However, in a response filing, the Montana Democratic Party, represented by Mike Meloy, John Heenan and Matthew Gordon said that it has associational standing – a concept that allows organizations with interests deeply tied to a membership – to be a party in the lawsuit.

“The voting restrictions strike at the very heart of the party’s purpose,” lawyers for the party contend. “For example restrictions limit the effectiveness of the party’s get-out-the-vote program, making it harder for Montanans who would vote for Democratic candidates to successfully register to vote or return their ballots, and thereby making it more difficult for the party to accomplish its mission.”

The Democrats also call into question the state’s interest in imposing a new set of laws.

“No state interest, let alone a compelling one, justifies those burdens: Montana has allowed students to use their college and university IDs at the polls for nearly 30 years without encountering any voter fraud,” the Montana Democratic Party said.

The case is one of two in Yellowstone County Court challenging the 2021 Legislature’s changes to voting and election law. The second case, filed by Western Native Voice, has sought to combine the two cases.

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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.

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