Judge strikes down three Montana voting laws as unconstitutional

Election Day registration, paid ballot collection and using campus-issued IDs back on the table

By: - September 30, 2022 7:09 pm

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

In a sweeping 199-page ruling, Yellowstone County District Court Judge Michael G. Moses struck down three laws passed by the 2021 Legislature that would have changed voter identification laws, prohibited paid ballot collection and eliminated Election Day registration.

The decision means that unless the case is appealed or stayed by the Montana Supreme Court, Election Day registration will be legal and in place during the 2022 Election, paid ballot collectors can receive ballots and college-issued identification remains legal for primary identification for the election as well.

The decision came after a two-week trial in early August. The legal cost to voters to defend the lawmakers’ actions has been $1.2 million and counting. And, for one of the laws, it was the third time such legislation has been attempted, challenged and struck down by three different judges.

Moses ruled that Senate Bill House Bill 530, which prohibited paid ballot collectors, has been found repeatedly unconstitutional by Yellowstone County District Judges Jessica Fehr and Donald Harris.

“Following these District Court orders holding BIPA (Ballot Interference Prevention Act) unconstitutional, the Secretary presented no evidence that the Legislature considered what was unconstitutional about BIPA or made any effort to craft HB530 to remediate the access issues identified by the court,” Moses said in his ruling. “To the contrary, the one legislator that the Secretary called to testify at trial stated that he did not study impediments on Native American voters when ballot collection is restricted, did not read the opinions finding BIPA unconstitutional, made no effort to learn why BIPA was held unconstitutional, but nonetheless support HB 530.”

Moses’ ruling found that lawmakers had not corrected legal “deficiencies” that were found in the previous cases because the new laws disadvantage Native American voters who often live farther away and face numerous obstacles, including no residential mail service. He reasoned that making paid ballot collection illegal harms Native Americans in a way that doesn’t tend to disenfranchise other groups.

“HB 530 is a solution in search of a problem,” Moses said. “It furthers no legitimate, let alone compelling, state interest and constitutes a disproportionate, severe, and unconstitutional burden on Plaintiffs’ constitutional right to vote.”

Moreover, Moses additionally ruled that the bill’s language was so vague and poorly defined that it made it impossible for citizens to understand, therefore inhibiting their fundamental right to core political speech as exercised by voting.

“There is no identifiable policy, standard, or rule in HB 530 that informs the administrative rule regarding the meaning of ‘pecuniary benefit,’” Moses said. He also pointed out to another unclear passage that’s a definition of a government agency.

Election Day Registration

The judge also ruled that Secretary of State Christi Jacobsen, who was called upon to defend lawmakers’ action, had not presented any evidence of voter fraud or widespread problems with Election Day Registration, which had been bumped back by House Bill 176, to the Monday (the day before Election Day) at noon, effectively cutting out 16 hours, or a day-and-a-half of registration and voting.

Moses said that even though the Legislature has the constitutional power to set statewide elections, once it grants privileges, like Election Day Registration, which was adopted in 2005, courts had the ability to review legislative changes. He ruled that the two-week trial presented substantial evidence that Election Day Registration does not lead to higher rates of fraud, doesn’t ensure safer or faster elections, and is used by many people such that eliminating it would lead to disenfranchising voters.

“Removing one-and-a-half days during which Montanans could register to vote and cast their vote is a severe burden on the right to vote. HB 176 denies Montanans their right to vote for one-and-a-half days during each election cycle. It would be unconstitutional to deny Montanans the right to bear arms for one-and-a-half days. It would be unconstitutional to deny Montanans the right to freedom of religion for one-and-a-half days,” he said.

Moses also pointed out that eliminating Election Day Registration doesn’t eliminate work or even cut down on the possibility of errors, it just shifts the same work to another time, while having the likely effect of stopping thousands of Montanans from voting.

“If EDR leads to additional work for election administrators, it is only because it boosts voter turnout,” Moses said. “This shift in time will only reduce the burden on election officials if it results in fewer Montanans voting.”

Moses said that lawmakers had also failed to consider other ways to shift burdens away from election officials at the county level.

“There are myriad ways for the state to reduce administrative burdens on elections officials without the disenfranchising effects of ending EDR, including hiring more poll workers on Election Day, offering simpler or more frequent training to election administrators, and modernizing election equipment,” he said.

College or university identification

Finally, Moses held that there was no reason for state lawmakers to eliminate college-issued identification as a primary form of ID for voting. He said adopting Senate Bill 169 put college or university students at a disadvantage if they met the residency requirements, but had no other form of identification. Furthermore, he noted that concealed-carry permits — something lawmakers elevated as identification — are not standardized throughout the state and offer no more security than college IDs.

He also ruled that there’s never been a Montana case of voter fraud using a college identification to vote and that lawmakers targeted college students because of the belief that they were more likely to vote for Democrat or liberal candidates, which is not a valid legislative reason for changing the law.

“Young voters and voters in all other age groups are otherwise similarly situated, but SB 169’s prohibition on out-of-state driver’s licenses or Montana college or university IDs – two forms of accepted for years without resulting in a single known instance of fraud or any other problem – disproportionately and disparately burdens young voters,” the ruling said. “It is no accident that the Legislature passed SB 169 just months after Montana’s youngest voters turned out to vote at record rates.”

Moses said that the concerns of voter fraud and its attendant penalties are already addressed elsewhere in state law.

“There is no evidence of significant or widespread voter fraud in Montana, let alone any fraud that HB 176, SB 169, or HB 530 would remedy,” Moses said. “Even if there were any evidence of voter fraud or coercion – which there is not, related to EDR, ballot collection, student identification, or otherwise – the challenged laws are not necessary because Montana has several other existing statutes that already criminalize such activities. The Secretary provides no evidence that the existing laws are somehow insufficient to protect against voter fraud or coercion.”

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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.