New law ending Election-Day registration in Montana faces third court challenge

‘Every eligible Montanan has the constitutional right to vote’

By: - September 22, 2021 4:05 pm

“I voted” stickers. (GPA photo archive via Flickr, CC-BY- SA 2.0)

A pair of labor unions and a disability rights advocacy organization are leading a legal charge against House Bill 176, a law passed in the most recent legislative session that effectively ended Election-Day voter registration in Montana.

The Montana Federation of Public Employees, the state’s largest union, the state AFL-CIO, the Montana Association of Centers for Independent Living and a series of individual plaintiffs filed a suit Wednesday challenging the constitutionality of the same-day registration ban in the Eighth Judicial District Court. The suit — the third filed against the bill since it was signed by Republican Gov. Greg Gianforte in April — says HB176 could disenfranchise the thousands of Montanans who register and vote on Election Day each year, especially those with disabilities, and argues the new law infringes on the right to suffrage and equal protection under the law.

“Election Day registration has become an essential component of the constitutional right to vote in Montana,” wrote Raph Graybill, a former Democratic candidate for Attorney General and lawyer for the plaintiffs, in the complaint. “If something about a voter’s registration needs to be updated — including things the voter has no awareness of or control over — then the registration can be updated on Election Day. Election Day registration ensures that these Montanans who are eligible voters can still exercise their constitutional right to cast a ballot.”

HB176 is also the subject of a pair of separate legal challenges from the Montana Democratic Party and from the ACLU, Western Native Voice and a number of Native American tribes in the state. Those suits, both pending and filed in Yellowstone County, mostly address the alleged impact of the law on young and indigenous voters. Tuesday’s suit, which will be heard by Eighth Judicial District Court Judge John Kutzman, similarly argues the law would disproportionately disenfranchise voters at the margins of the halls of power, but focuses specifically on the ways that people with disabilities in Montana and the working class in general rely on same-day voting .

“The action taken by the Legislature in HB176 created additional hardships for someone with a disability who may struggle every day just to go out of bed,” said Joel Peden, with the Montana Association of Centers for Independent Living, at a press conference Wednesday. “Being able to eliminate one extra trip in our lives can make a huge difference.”

09-22-2021 FILED Complaint (1)

The predominant message from the plaintiffs is that some voters, whether due to demanding jobs, changes in address, a lack of physical independence or even administrative errors need to register or alter their registration on Election Day, in some cases the only time that a county elections office will be open outside of regular business hours.

“These plaintiffs’ stories are exceptionally common across Montana — working people devoted to their communities who cannot access a county election office during business hours, voters whose ballots never appeared, voters who moved to another county,” said Amanda Curtis, a former lawmaker and president of the MFPE. “Not one single eligible Montana voter should ever be denied the right to vote.” 

Election-Day voter registration in Montana began in 2006, thanks to legislation passed with broad bipartisan support a year earlier establishing the same-day cutoff. More than 70,000 Montanans have registered and voted on Election Day since, including 9,790 in 2020, according to the suit and also data from the Montana Secretary of State’s Office. The practice faced a challenge at the ballot box in 2014, when Republicans lawmakers sent a measure striking down same-day registration to the voters, though voters rejected the initiative by 15 percent points.

Republican backers of HB176, one of several election law measures championed by Secretary of State Christi Jacobsen, argued that moving the cutoff to noon the day before an election would simplify the work of election officers and cut down on lines and wait times. To move back the late registration deadline by a day isn’t disenfranchising anyone; voters have plenty of time to remedy errors to their registration, argued GOP lawmakers. But opponents, especially those affiliated with indigenous communities in Montana, said the new law would yield negligible improvements to election efficiency or integrity at the expense of a vital opportunity for eligible voters to exercise their political rights.

In a statement, Jacobsen said HB176 is “squarely constitutional” and denied that same-day registration was fundamental to the state constitution.

“The most recent partisan lawsuit filed against the Secretary of State is completely baseless, especially considering when the Constitution was signed, the voter registration deadline was 30 days before an election,” the statement said.

The lawsuit generally asserts that HB176 unconstitutionally violates the right to suffrage. It also makes a more specific legal argument about the piecemeal nature of the legislation, which the suit says creates a problem of unequal protection under the law.

“For example, HB176 does not repeal the (existing) provision that Montanans who change their name or move within their county may submit an updated voter registration on election day,” the suit reads. “But Montanans who move to another county are required to return to their old county on Election Day or they simply cannot vote.”

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.