In a split ruling, the state Supreme Court has struck down four laws that would have drastically changed the way Montanans vote.
Senate Bill 169, House Bill 176, House Bill 530 and House Bill 506, all passed during the 2021 Legislature, were challenged in court by a number of plaintiffs including multiple tribes, Western Native Voice, Montana Youth Action, the state Democratic party and more.
The court's decision was filed Wednesday.
The bills sought to add new voter identification restrictions, end election day voter registration, limit paid third-party ballot collection and prevent 17 year olds from voting even if their 18th birthday fell on or before election day.
All laws were struck down, at least in part, under Montana's constitutional "fundamental right to vote."
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"This was an all out vindication of the right to vote in Montana," said Alex Rate, deputy director of ACLU Montana and one of the attorneys representing the tribes.
The Secretary of State's office, Montana's chief elections officer, did weigh in.
"The Secretary is devastated by this decision but assures Montanans that her commitment to election integrity will not waver by this narrow adoption of judicial activism that is certain to fall on the wrong side of history. State and county election officials have been punched in the gut," the statement read.
HB 176 eliminated election day registration for most people and put the registration deadline at noon the day before the election.
Montana enacted same-day voter registration in 2005 and it has been challenged since. In a 2014 ballot referendum, Montanans voted against eliminating same-day voter registration by 14 percentage points.
"The record clearly demonstrates that eliminating election day registration interferes with the fundamental right to vote," Chief Justice Mike McGrath wrote in his majority opinion. "The elimination is far from the least onerous path the State could have chosen for its asserted interests."
On the ground, attorney on for the plaintiffs Rylee Sommers-Flanagan said "the thing about election day registration is it prevents people from being turned away."
SB 169 tried to remove student photo IDs from the state’s list of acceptable forms of ID to vote. If someone wanted to use a student ID, they would need to be paired with another form of documentation, like tax documents. The state has accepted student photo IDs for nearly two decades.
"Excluding student IDs from the list of acceptable photo IDs imposes a burden on student voting and the Secretary has not established that it is necessary for any legitimate government purpose, much less that it is more important than the right to vote. Nor is it a reasonable restriction of voter’s rights," McGrath wrote.
Absentee voting has become the predominant mechanism in Montana, accounting for 75% of the voting in 2018 and the only means of voting in 2020, Justice Ingrid Gustafson pointed out.
HB 530 would have prohibited ballot collectors from gathering absentee ballots from voters in more remote areas, which the court struck down. The court did rule, however, that collectors can not be paid based on the number of ballots they collect.
Some organizations pay people salaries to collect ballots in more rural areas and areas with poor mail access, like in some areas of Montana's reservations.
"Because of the barriers that exist to voting in Indian Country which include socioeconomic conditions, which include lack of home mail delivery, having all the tools available in the tool kit to cast a ballot is incredibly important," Rate said.
Ballot collectors also seek out elderly voters and disabled voters.
“Today’s decision is a resounding win for tribes in Montana who have only ever asked for a fair opportunity to exercise their fundamental right to vote,” Native American Rights Fund Attorney Jacqueline De León said in a statement. “Despite repeated attacks on their voting rights, Tribes and Native voters in Montana stood strong, and today the Montana Supreme Court affirmed that the state’s legislative actions were unconstitutional. Native voices deserve to be heard and this decision helps ensure that happens.”
HB 506 said that a 17-year-old voter, who would be 18 by election day, could not receive an absentee ballot.
"What (HB) 506 said is that if you're the newest member of the electorate then you can't (vote)," Sommers-Flanagan said.
Multiple attorneys for the defendants did not respond to request for comment.
The ruling was not unanimous and justices were split, depending on which bill was being considered.
Justices McGrath, Gustafson, Laurie McKinnon and James Jeremiah Shea ruled that all four laws are unconstitutional, while one justice agreed with the majority that SB 169, HB 176, and HB 550 were unconstitutional but dissented on HB 506. On HB 506, Two justices agreed that HB 506 was unconstitutional but dissented on the other three.
The dissenters partly argued that the state's Constitution grants the Legislature the authority to regulate elections, and therefore the bills that were passed were within the legislative bounds.
"Courts have no constitutional power or authority to act as a 'super-legislature' second-guessing 'the wisdom, need, and propriety' of legislative enactments..." wrote Justice Dirk Sandefur in his opinion that dissented in part.
The role of the Legislature came up for the plaintiffs as well.
"The Legislature should be thinking long and hard about enacting any restrictions on the right to vote," Rate said.
This ruling comes as the state approaches what will likely be one of the biggest voter turnouts in its history, as it's a presidential election year and eyes across the country are on the U.S. Senate race as Democratic Sen. Jon Tester faces a formidable challenger in Republican Tim Sheehy.
"It's a very important election year and so we're celebrating the fact that all avenues for casting a ballot are open for voters in Montana," Rate said.
A Yellowstone County district court judge found all four bills unconstitutional after a nine-day trial.
The four bills were in effect temporarily for the 2021 school board elections and the two that pertain to student ID and same-day registration were in effect for the 2022 primaries. Otherwise, they were enjoined by the lower court.
According to Joshua Douglas, a law professor at the University of Kentucky who specializes in state constitutions and voting rights, 49 out of the 50 states -- Arizona being the one -- have enshrined the right to vote in their state's constitutions.
When state courts are faced with ballot access questions, Douglas explained, sometimes they follow the U.S. Supreme Court's "lead in providing less protection for the right to vote." Other states, however, rely on in-house provisions and "more robustly construed its state constitution to better protect voters" which is what the Montana justices did in their ruling, Douglas said.
The majority opinion stated that the "Montana Constitution affords greater protection of the right to vote than the United States Constitution."
Until now, the litigation over these bills left Montanans wondering what their elections would look like and if their ballot access would change dramatically.
"(The justices) are embracing this notion that voting is part of democracy, that it is part of the people's granted power to government." Sommers-Flanagan said. "It is a really important moment."