Judge strikes down law that targeted youngest voters, ruling it violated state’s constitution

By: - July 27, 2022 5:48 pm

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A Yellowstone County District Court judge has ruled that a law passed by the 2021 Legislature that would have forced county clerks to withhold absentee ballots from voters who would turn 18 by Election Day is a violation of the Montana Constitution.

Judge Michael G. Moses made the ruling Wednesday and struck down the law that affected just a tiny segment of the electorate: Those who turn 18 in between the time absentee ballots go out and Election Day.

Because the new law required those voters to potentially travel to a county election office in order to vote, Moses ruled that the law placed burdens on the soon-to-be-18-year-old voters that are not imposed on the rest of the electorate. And votes are not processed or counted until Election Day.

Youth advocacy groups cheered the ruling.

“Young people’s participation in democracy is essential. Today, the court affirmed what we already knew: Restricting access to the ballot is an obvious wrong,” said Kiersten Iwai, executive director at Forward Montana Foundation. “Now, our newest voters can get involved at the earliest possible opportunity because they will have the same level of access to the ballot as all other Montanans. And that’s just what makes sense.”

The three groups that challenged the bill were Montana Youth Action, Forward Montana Foundation and The Montana Public Interest Research Group. They were represented by Rylee Sommers-Flanagan and Niki Zupanic of Upper Seven Law and Ryan Aikin of Aikin Law Office.

Moses also addressed three other bills that were passed in the name of election security by the 2021 Legislature that are now being challenged by several different groups. In a 25-page ruling, Moses said that genuine factual disputes exist between both sides and that the court cannot issue summary judgment, meaning those issues are likely headed for trial.

Voting is not an ‘indulgence’

Previously, the Secretary of State’s office argued that absentee voting is “an indulgence,” but it’s not guaranteed by the state’s constitution.

“However, under House Bill 506, most of the electorate is permitted this ‘indulgence’ while a few have been excluded from the opportunity to similarly indulge,” Moses wrote.

Moses also pointed out that a version of House Bill 506 adopted by the Montana House of Representatives demonstrated that there was “a less onerous” way to implement a measure, demonstrating that lawmakers failed to take the least burdensome path, which also violates a constitutional law principle.

“This unadopted version of HB506 would have permitted everyone in the electorate to have the same access to their ballots and to the ‘indulgence’ that is absentee voting while ensuring electors turning 18 in the month prior to the election are treated uniformly throughout the counties and meeting other interests outline by the Secretary,” Moses said.

One case settled, three more still left open

Three other bills that have been consolidated into one suit remain: Senate Bill 169, House Bill 176, and House Bill 530.

Those bills concern which identification is acceptable in Montana, whether ballot collectors can be paid, and finally whether stopping Election Day registration was legal. Moses said that all three of those cases have genuine factual questions that need to be answered, so that a similar “summary judgment” in those aspects is not appropriate.

However, Moses did briefly address a question that has arisen during the litigation of these voting rights cases: Whether voting rights can be made more restrictive, even after they’ve been allowed for years.

“The court has no doubt that the Legislature had the discretion to choose whether or not to enact Election Day Registration, however, the Montana Constitution does not speak to the Legislature’s discretion to revoke EDR given its implementation for the past 15 years and the significant evidence submitted by plaintiffs showing that Montanans make significant use of EDR,” Moses 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.

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