Despite a recent ruling by a Billings judge reactivating Election Day voter registration ahead of Montana’s Nov. 8 midterm election, traces of the law the court struck down continue to linger, creating potential confusion about what the registration deadline actually is.
One of the latest examples arose earlier this week, as listeners of the Bozeman FM radio station The River (93.7) may have heard an outdated public service announcement from Secretary of State Christi Jacobsen. The ad featured Jacobsen encouraging eligible Montanans to be “vote-ready” and informing them that they have until noon the day before the Nov. 8 election to register. In fact, the law that set that registration deadline — House Bill 176 — was struck down as unconstitutional on Sept. 30 by Yellowstone County District Court Judge Michael Moses — meaning eligible Montanans can once more register to vote on Election Day. Jacobsen, who requested the bill and was the sole defendant in the legal challenge, has not filed an appeal with the Montana Supreme Court.
According to SOS spokesperson Richie Melby, the radio announcement was part of an ongoing messaging effort Jacobsen started nearly a year and a half ago to notify voters about changes to state election laws enacted by the Montana Legislature. Melby said via email that Jacobsen’s office was alerted about the announcement’s continued airing Wednesday by a plaintiff’s attorney in the now-resolved district court case. Staff notified the Montana Broadcasters Association the same day, Melby added, to “verify that the one ad would lapse from running.”
A trio of 2021 election administration laws were declared unconstitutional last week. Judge Michael Moses’ order has a lot to say about where the laws came from, and why he found them illegal.
“Our office has full-time staff working to identify and revise nearly two years worth of work implementing the election laws passed by the 2021 Legislature,” he wrote. “These last-second changes thwart the planning from state and local election officials and are again confusing to Montana voters.”
Montana Broadcasters Association President and CEO Dewey Bruce confirmed that he received an email about the ad from Jacobsen’s office Wednesday, and said he promptly notified the association’s members to pull it from their airwaves.
While Moses’ ruling brought an end to the litigation at the district court level, the laws in question were actually blocked more than a week earlier. On Sept. 21, the Montana Supreme Court upheld a temporary injunction barring Jacobsen’s office from enforcing the changes until the case was concluded. Melby told Montana Free Press via email Sept. 29 that under the injunction, Montanans would be allowed to register to vote and cast a ballot on Election Day.
The ad isn’t the only lingering shred of incorrect voter information drawing public attention. At least two readers informed MTFP this week that the secretary of state’s website continues to list noon on Nov. 7 — the day before Election Day — as the registration deadline. However, both website references to the HB 176 deadline are accompanied by an asterisk directing viewers to a footnote in red italicized text that reads: “This provision will not be enforced for the 2022 general election based on the court order issued on September 30, 2022. This is subject to change.”
Melby did not immediately respond to a follow-up email asking if those references would be modified or updated.
Jacobsen’s office also distributed an official 2022 voter information pamphlet in mid-October that lists the now-inaccurate registration deadline implemented in HB 176. The pamphlet’s appendix also includes outdated information about photo identification requirements at the polls based on Senate Bill 169, another law Moses declared unconstitutional in his September order. Several forms of identification listed as requiring a second identifying document — student IDs among them — can now be used as primary forms of identification at the polls. The pamphlet makes no reference to litigation involving the IDs or registration deadline.
Montana’s top election official, Christi Jacobsen, challenges a lower court decision that declared laws ending election-day registration, upped voter ID requirements and banned paid ballot collection unconstitutional. The case now goes before the Montana Supreme Court.
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