The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).
For now, Election Day voting and using college or university identification to vote will stand as the Montana Supreme Court narrowly upheld a Yellowstone County District Court judge’s temporary injunction on two laws passed by the 2021 Montana Legislature.
In a 4-3 split decision, Justice Laurie McKinnon wrote the decision for the majority, while Justice Beth Baker dissented and concurred in part. Justice Jim Rice wrote a dissenting opinion that was joined by Justice Dirk Sandefur.
The near-final fate of House Bill 176 and Senate Bill 169 rests with Yellowstone County District Judge Michael G. Moses, who held a two-week trial last month on voting laws, including HB 176 and SB 169.
Even as the case headed for trial, attorneys for Montana Secretary of State Christi Jacobsen appealed Moses’ temporary injunction of the laws that changed Election Day voting and also changed the set of acceptable identification used to vote. Jacobsen had argued the injunctions made it too hard to carry out preparations for Election Day, and said that the lawmakers had the constitutionally-given right to set election law.
Meanwhile, the plaintiffs’ groups argued that eliminating Election Day voting disenfranchised thousands of Montanans who had used it since its adoption in 2005, and especially disadvantaged Native Americans who relied it. They also argued that eliminating college or university-issued identification was arbitrary and targeted young voters disproportionately.
The Supreme Court said in its decision, which was joined by Justices Ingrid Gustafson, James Jeremiah Shea and Chief Justice Mike McGrath, that attorneys for many groups including the Montana Democrat Party, Western Native voice and several Native American tribes, had proven a prima facia case of irreparable injury, without making a decision on the merits of the case, which are currently in Moses’ hands.
“Although the task of regulating elections is delegated to the Legislature, it must be performed in conformity with the fundamental right to ‘free and open’ elections where no power ‘shall at any time interfere to prevent the free exercise of the right,’” the opinion said, quoting from Montana’s Constitution.
The majority agreed that while the final result at trial may be decided differently, damage would occur if Montana citizens are denied the right to vote before the trial’s outcome.
The case may not be the last time the Montana Supreme Court weighs in on the laws or the issues. During trial, neither side disputed that whatever Moses decides, it’s likely to be appealed back to the high court.
The Supreme Court noted that Moses relied on testimony that showed younger, college-age voters, who are more transient than the average population, rely on college or university-issued identification, and that other forms of identification that lawmakers touted, including a concealed-carry permit, were equally less uniform across the state.
“Concealed-carry permits in Montana are neither uniform nor strict photographic identification,” the opinion said. “Rather, they are administered on a county-by-county basis and are not required by Montana statute to bear a photograph with the permit-holder’s likeness.”
Furthermore, the high court pointed out that both sides agreed that voting fraud is “vanishingly rare” and that Moses’ court had found no instances of voter fraud as it relates to student identification.
The opinions released by the Supreme Court were also a deep discussion and historical lesson on the 1972 Constitutional Convention. In it, justices both from the majority and dissenting opinions drew on testimony to support their respective cases.
The majority opinion said that delegates believed in Election Day registration and voting, but stopped just short of implementing it, not out of ideological differences, but for more pragmatic reasons.
“The 1972 Constitutional Convention transcripts reveal that the majority of delegates who spoke were in favor of reducing barriers to voting through EDR, with the eventual majority merely concluding that mandating such a specific procedure in the Constitution could be a mistake if it later proved to be unworkable,” the opinion said.
Ultimately, the majority of the court ruled that it’s the state constitution’s emphasis on voting that is fundamental to government in Montana:
“Protection of our Article II fundamental rights ensures that, among other things, government is indeed founded upon the will of the people only. Undisputedly, the will of the people is expressed through their right to vote, and a healthy, participatory democracy depends on ensuring that as many people as possible vote for the people who represent them. Montana’s representatives to the Constitutional Convention understood these benchmark principles and drafted an unequivocal and strong provision protecting the right of suffrage, placing it preeminently in the Article II Declaration of Rights.”
Baker both joined and dissented in part of her opinion, agreeing with the majority in enjoining Senate Bill 169, but saying it had erred in issuing an injunction for House Bill 176, which governs Election Day voting.
At the same time, Rice and Sandefur, in the dissent, reference a recent legal fight regarding the legality of marijuana to inform the court about voting, saying that an individual freedom does not trump the government’s right to maintain peace and order, or enforce laws.
Suggesting that more of a balanced approach was necessary, the dissenting opinion said greater weight must be given to the Legislature’s ability to set elections, another protection guaranteed by the Montana Constitution.
“If all election laws that simply bear upon a fundamental right are subject to strict scrutiny review, the Legislature would be constrained from enacting even minor changes, despite the Constitution’s charge to the Legislature to … ‘insure the purity of elections and guard against abuses of the electoral process.’”
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