SOS files opening argument in 2021 election laws appeal

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.

The 2023 Legislature’s adjournment May 2 generated a flurry of coverage as scores of high-profile policy debates in both chambers came to an abrupt end. Fairly high on that list of debates was the topic of election security, which kicked loose a flood of proposed changes — some successful, some not — and inspired the formation this session of a dedicated committee.

But something else recently happened on the election policy front, a development tied not to the latest round of lawmaking efforts but rather to an earlier iteration of the debate that played out two years prior. After getting three deadline extensions over the past four months, Secretary of State Christi Jacobsen finally filed her opening argument in an appeal to the Montana Supreme Court to reinstate election laws passed by the 2021 Legislature.

To recap: Lawmakers last session approved four new laws directly impacting the voting experience. They ended same-day voter registration, rolled out new voter identification requirements, prohibited payment to people who return voted ballots on behalf of other voters, and barred counties from sending absentee ballots to minors who would be eligible to vote by Election Day. The laws quickly generated a legal challenge, and were overturned last fall when a Yellowstone County District Court judge ruled that they infringed on Montanans’ constitutional right to vote.

Jacobsen’s appeal hinges on two arguments raised earlier in the case: that the laws are not as burdensome as the district court determined, and that the U.S. Constitution grants the Montana Legislature sole authority to regulate the state’s elections — an argument known as the “independent state legislature theory.” Last week, Jacobsen was joined in her appeal by the national nonprofit Restoring Integrity and Trust in Elections (RITE), which echoed her arguments and added that the district court was too exacting in its demands for evidence that the laws are necessary. The group, which was co-founded by former Trump Attorney General William Barr and longtime GOP strategist Karl Rove, also backed Jacobsen last summer in asking that the state Supreme Court overrule a lower court injunction temporarily blocking the laws. The court briefly reactivated the laws but later rejected Jacobsen’s request. 

Plaintiffs in the original case, including the Montana Democratic Party and Western Native Voice, will likely enter their own arguments within the next two months. Meanwhile, a new slate of laws will trickle out of the 2023 session. Unlike last time, though, it’s doubtful voters will notice much difference. The focus of the election security debate nationally has pivoted to internal processes — voting machines, digital records, post-election audits. Lawmakers tailored their efforts accordingly, but the majority of 2023 bills that did pass had bipartisan support and an occasional thumbs-up from county election officials, who will ultimately feel this latest series of changes the most.