Judge rejects Secretary of State’s voting laws arguments, allows Dems’ case to proceed

Yellowstone County Judge Michael Moses said Democrats could be hurt by two new voting laws

By: - November 26, 2021 5:32 pm

Yellowstone County District Court Judge Michael Moses in court (Photo by Darrell Ehrlick of the Daily Montanan).

A Yellowstone County District judge has rebuffed Secretary of State Christi Jacobsen’s attempt to dismiss a lawsuit brought by the Montana Democratic Party challenging the Legislature’s changes to voting laws this session.

Attorneys for Jacobsen argued that the Democrats’ suit should be dismissed for a multitude of reasons, including the newly passed laws didn’t disenfranchise any political party over another, that the party lacked standing in the case, and that the Legislature had the power to set election standards within the state.

Ultimately, Judge Michael G. Moses rejected all of Jacobsen’s motions and ruled that the Democrats had standing to sue, and that it was likely that the newly minted laws may disproportionately affected certain classes of Montanans, including college students and those in rural areas.

However, the ruling did not make any final decisions, rather, it was a procedural hurdle that allowed the lawsuit challenging House Bill 176 and Senate Bill 169 to proceed.

Moses agreed with Democrats that the political party could be put at economic harm having to divert resources and funds from other activities toward their “get out the vote” efforts and also to registering voters before Election Day.

College-age voters

The Democrats have challenged the case, in part, saying that the changes to the law, including eliminating student ID cards as valid primary forms of identification, put an undue burden on a specific, targeted class. In court documents, attorneys for the Democrats argue that testimony during hearings on the legislation should have given sufficient cause to show the harm done by the lawsuit. Furthermore, attorneys argued that having heard the testimony, the lawmakers still decided to pass the laws anyway, knowing it would adversely affect college-aged voters.

The political party pointed out that student ID has been “accepted for years without resulting in a single known instance of fraud,” and said that by changing that, the new laws disproportionately affect college-age voters, especially as they tend to move more often for education. The Democrats said the new laws mean that some voters may show up unable to vote or unaware of the changes.

“Taking the well-pled allegations in the (complaint) as true … the court finds that plaintiffs have sufficiently pled that SB169 and HB176 violate the Equal Protection Clause,” the court document said. “Plaintiffs allege that HB176’s ban on election day registration uniquely affects young votes due to their need to register to vote with more frequency than the general public. Plaintiffs have also alleged sufficient facts to support discriminatory intent.”

That issue was also tied closely to the same-day or Election Day voter registration. The court sided with the Democrats because voters in Montana are nearly 16 times more likely to register on Election Day than any other day in the later registration period.

The court said that obstacles for rural voters or who need assistance getting to the polls would be burdened more because of the high cost to travel twice – once to register and once to vote.

Judicial review

Jacobsen’s attorneys also argued that it was the lawmakers’ sole discretion to pass laws governing elections – and that, for example, for decades after the Montana Constitution was passed in 1972, that Election Day voting was not a part of it.

However, even though the court agreed that the Legislature has the role and responsibility to pass laws about elections, it was also equally true that the courts have the power to review those laws.

“Just because the Legislature chose to enact Election Day registration and expand voting rights does not mean the Legislature can water down those rights without a review of the constitutionality of that action,” the court said in its ruling.

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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.