The back-and-forth over voting rights in Montana

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

Late last month, a trio of legal briefs were filed with the Montana Supreme Court — responses from the plaintiffs in Secretary of State Christi Jacobsen’s appeal over four now-blocked 2021 election laws. The filings laid out lengthy counter-arguments on the part of the Montana Democratic Party, tribal stakeholders and youth engagement organizations supporting a lower court’s determination in September 2022 that the laws are unconstitutional.

Much of the early back-and-forth between Jacobsen and the plaintiffs centers on the level of legal scrutiny that Yellowstone County District Court Judge Michael Moses applied to measures that ended same-day voter registration, barred paid ballot collection and implemented stricter voter ID requirements. Rejecting Jacobsen’s position that such laws were necessary to combat voter fraud and safeguard the integrity of Montana elections, the Democratic Party and its cohorts maintained what they’ve been arguing from the start: that the 2021 Legislature’s actions infringed on Montanans’ right to vote and, as such, deserved the rigorous scrutiny that Moses brought to bear.

The appeal also resurfaces a fourth law absent during the lower court’s nine-day trial last year. Moses struck down House Bill 506 early on, determining that the law preventing county officials from sending absentee ballots to minors who would turn 18 on or before Election Day “impermissibly denies this subgroup access to an avenue of voting” available to others. Jacobsen has rebuffed that conclusion. Meanwhile, the youth plaintiffs in the case continue to argue that lawmakers passed “the worse of two options” to achieve its ends in HB 506, rejecting a “nondiscriminatory” version and making absentee ballot distribution more complicated for election workers.

Jacobsen’s appeal has also drawn two entries in recent weeks from groups expressing support for the plaintiffs. The first came in the form of a June brief from the Montana Federation of Public Employees, the state’s largest union, which filed its own 2021 legal challenge against the termination of same-day registration in Cascade County District Court. The second was a request to appear in the case filed by a coalition of 10 state constitution and election law scholars from law schools around the country — Columbia, NYU, the University of Texas and Arizona State, to name a few. In it, those scholars voiced a desire to present the court with information about the “underlying democratic principles” that embody the Montana Constitution, noting that the case involves “important constitutional questions” in which they’re well schooled.