The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)
Two Montana organizations have sued the Montana Secretary of State, Montana Attorney General and the state’s Commissioner of Political Practices seeking to block enforcement of a law passed and signed this past session that the organizations say puts unnecessary and unlawful burdens on Montanans’ voting rights.
The lawsuit claims that House Bill 892, sponsored by Rep. Lyn Hellegaard, R-Missoula, and signed into law by Gov. Greg Gianforte on May 22, is overly vague and broad and violates people’s right to vote in violation of the First and Fourteenth amendments of the U.S. Constitution.
The suit was filed Friday in federal court in Helena by attorneys from the Elias Law Group and Great Falls attorney Raph Graybill, who ran unsuccessfully for attorney general in 2020, on behalf of the Montana Public Interest Research Group and the Montana Federation of Public Employees.
While prior to the 2023 legislative session, Montana law already stated that “no person may vote more than once at an election,” Hellegaard’s bill changed statute to add a series of qualifications to that language: “A person or elector may not vote in this state more than once at any election held in this state or vote in both this state and another state or territory in the same or equivalent elections, except in a special district election in which a person or elector is entitled to vote.”
The attorneys for MontPIRG and MFPE said while the purported intent of the bill – to clarify double voting in state law – was fine, the new law “goes much further, creating vague, overbroad new restrictions that implicate other facets of the franchise,” according to the lawsuit.
It says new language inserted into the law that a voter must not “purposefully remain registered” goes unexplained, and says that other language about a voter previously registered to vote in another county or state having to provide that previous registration on a new Montana application also contains unclear holes.
“This unnecessary law would imprison young teachers moving apartments or state troopers changing detachments for failing to follow a de-registration process that doesn’t even exist,” MFPE President Amanda Curtis said in a statement. “It’s ridiculous.”
The amended law puts in place penalties of up to 18 months in prison and fines up to $5,000 in place for anyone who violates it.
“HB892’s reach far exceeds its stated (and legitimate) purpose of prohibiting double voting,” the lawsuit says. “It criminalizes both the act of maintaining multiple voter registrations and the failure to include prior-registration information on applications, even if voters and registrants have no intention of actually voting in more than one place—and even if they do.”
The attorneys and groups argue that the unclear standards violate due process rights under the federal constitution, violate the First Amendment because the new law goes beyond its original scope, and chills the right to vote “through the imposition of onerous criminal penalties.”
MontPIRG argues the bill will harm the organization because one of its missions is to register young Montanans to vote. Since the new law would subject anyone who helps someone register to vote in violation of the law to criminal penalties, attorneys argue, it would expose MontPIRG staff and volunteers to criminal penalties.
MFPE, Montana’s largest union, argues the new law could subject its members moving within or to Montana to criminal penalties and force the organization to educate its members about the changes to voter registration, which attorneys say puts MFPE “in the impossible position of warning its members about risks of criminal prosecution that are far from clear.”
The lawsuit notes several times during the legislative session when lawmakers and others questioned the criminal penalties in the bill and called it too vague or broad for interpretation.
Lawyers for the groups in court filings give example of the law’s lack of clarity. The lawsuit questions how “purposefully” remaining registered in other jurisdictions with no intent to vote in those other jurisdictions could be interpreted, as some voters in other states are automatically registered to vote.
It also questions whether people moving to Montana would have to take official action to deregister in other states or if they would be automatically deregistered once they register to vote in Montana. It also contemplates whether a voter would have to provide their entire voter registration history or simply the last place they were registered to vote in order to comply with the law.
“In sum, the scope of criminal liability is uncertain based on the plain text of the statute, and the stake for honest mistakes are high—the penalty for noncompliance is up to 18 months in prison,” the lawsuit states. “The state has not provided (and, indeed, cannot provide) any clarification to salvage HB892’s fatal vagueness.”
The suit calls the criminal penalties “heavy handed” and says they apply too broadly and do not further a state interest.
It says the law goes beyond prohibiting double voting in Montana and will chill political expression by potentially pushing possible voters not to register in Montana and subjecting people to felonies that would further bar them from voting if they are serving a jail or prison sentence.
“Even if these new restrictions served legitimate interests, the ends do not justify the means,” the suit says. “The imposition of severe criminal penalties—even for neglecting to complete a section on the voter-registration application—is not justified and not tailored, narrowly or otherwise, to the interests that purportedly underpin HB892.”
The groups and attorneys are asking a judge to find that the newly amended sections of law under HB892 violate the U.S. Constitution and to bar them from enforcing the law.2023-09-29_MontPIRG-v.-Jacobsen_ECF-1_Complaint-for-Declaratory-Injunctive-Relief95
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