A Yellowstone County judge offered little indication on whether he’ll block four new Republican voting laws passed last year, as the state and a coalition of groups challenging the new laws gave more than two hours of oral arguments during a Thursday morning hearing.
At issue are a series of new restrictions on voting passed by Montana’s GOP-dominated Legislature and signed into law by Republican Gov. Greg Gianforte. Republicans have argued the new restrictions — including tighter voter ID requirements, limits on ballot collection practices and an end to Election Day voter registration — were needed to reinforce the state’s election security.
Multiple groups responded with three lawsuits that collectively took aim at the four new laws. The complaints were consolidated under a single case in December, with Secretary of State Christi Jacobsen as the sole defendant. The plaintiffs are asking the court to declare the four laws unconstitutional, but Thursday’s hearing only addressed whether Judge Michael Moses should grant injunctions to temporarily block enforcement of the laws while the larger case plays out.
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One of those laws, House Bill 176, ended the state’s long-standing policy of allowing people to register to vote on Election Day.
Representing the Montana Democratic Party, the first group to file a complaint challenging Republican-backed voting laws passed last year, was Matthew Gordon of the Seattle-based firm Perkins Coie. Noting that Election Day in Montana is “by far the most popular day for people to register” to vote, he argued that ending it would have an outsized impact on voters living on Indian reservations, young people and those with disabilities — all of whom are more likely to take advantage of the convenience of registering and casting a ballot at the same time.
Jacobsen’s defense of the law has echoed the arguments advanced by Republicans who supported House Bill 176 — that it eases the burden on election officials on what is already their busiest work day.
“Maybe for big cities it’s not an issue, you can just hire more staff, but the Legislature regulates for the whole, and most counties in Montana are very small,” said Dale Schowengerdt with the Crowley Fleck law firm, one of the private attorneys representing Jacobsen.
Gordon pushed back on that argument by citing a recent survey that found 1 in 5 election administrators plan to leave their jobs before the 2024 election.
“They’re not saying they’re leaving the job because of Election Day registration, or the normal burdens that attend administering elections,” he said. “What they say, as the most common reason given, is that there are politicians out there attacking a system that they know to be fair and honest.”
A trio of organizations that promote civic engagement among young adults also sued the state last year to challenge the Election Day registration law and a series of changes to Montana’s voter ID law, which notably removed student ID from the list of acceptable photo identification needed to vote and cast a ballot.
Student IDs, unlike in-state driver’s licenses, state photo IDs and concealed-carry permits, are now relegated to a “secondary” form of photo ID, which must be paired with additional documentation proving the voter’s address. Photo ID issued by another state was also downgraded to “secondary” status, which Rylee Sommers-Flanagan, an attorney representing the youth groups, argued is clearly aimed at college students, who are more likely to have recently become Montana residents.
Schowengerdt echoed previous arguments advanced by Republicans when he later noted that government-issued photo IDs are required for many other instances, like boarding a plane or cashing a check.
“This is not an unusual requirement,” Schowengerdt said. “It’s not a heavy burden to comply with. It’s recognized that it’s required in so many other contexts, I’m a little surprised it’s even that controversial.”
The youth groups are also asking the court to block a portion of House Bill 506, which prevents ballots from being mailed out to new voters in advance of their 18th birthdays. Voters who fall in that category, the plaintiffs argue, effectively have a reduced opportunity to vote compared with older voters who enjoy a longer period of time to cast their absentee ballots.
“Certainly there is a general sense from the Legislature, particularly in this last session, of a disregard for the value and importance of youth voting in Montana,” Sommers-Flanagan said.
More broadly, Jacobsen has failed to present any evidence showing how the new laws would advance the state’s interest of preventing voter fraud, said Alex Rate, an attorney with the American Civil Liberties Union of Montana. The ACLU is representing four Native American tribes in Montana, along with a pair of indigenous rights groups.
Those plaintiffs, like those in the other two cases, are challenging the law ending Election Day registration, along with House Bill 530, which prohibits people from collecting and submitting other people’s voted ballots if they are receiving any financial compensation for doing so.
Republicans, who mostly supported the measure, have said it enhances election security by minimizing the risk of ballot tampering, while opponents have criticized it and similar proposals as attempts to suppress the votes of more liberal-leaning voters, including those living on Indian reservations and college campuses.
In determining whether to temporarily block the new voting laws, Moses will first have to decide what level of legal scrutiny to apply to the laws.
The plaintiffs have argued that a 2020 case challenging an earlier law that restricted ballot-collection activities indicates that the laws should be evaluated under “strict scrutiny” — meaning the state would have a higher bar to clear in defending the election laws.
Some Republicans in the state have spread unfounded allegations that the 2020 elections were marred by widespread voter fraud, or that the general election was somehow stolen. No evidence substantiating those theories has emerged to date, and while Jacobsen has referred to voters’ lack of confidence in the electoral system, she has refused to publicly contradict those claims.
“A cynic might argue that by spreading disinformation about rampant fraud (and) stolen elections, the crisis of confidence, if there is one, is self-made,” Rate said. “The same cynic might argue that these new theories are merely pretexts for ever more voter restrictions.”
Moses asked few questions during the course of the hearing, and at the end simply thanked the two sides and noted that he has “a lot of work left yet to do” as he weighs the competing arguments. He offered no timeline for when he might rule on the preliminary injunction requests.
While the laws have already been effective for local elections around the state, this year would be the first in which they impact a federal election. Montana’s primary election is June 7. Mail-in ballots will be sent out May 13.