Montana Supreme Court Says Laws Hinder Native Voting Rights

The Montana Supreme Court on Wednesday struck down four state laws that challengers claimed hindered Native Americans and students from participating in the state's election process, affirming a lower court's ruling that the 2021 legislation violated fundamental voting rights.

In a 4-3 ruling, the state's high court affirmed that the laws — House Bills 176, 530 and 506, as well as Senate Bill 169 — are unreasonable, arbitrary and interfere with an individual's right to vote under the Montana Constitution.

"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 staff attorney Jacqueline De León, counsel for the plaintiff tribes, said in a statement Wednesday. "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."

Montana Secretary of State Christi Jacobsen had appealed two orders in 2022 from the Thirteenth Judicial District Court that gave wins to the state's Democratic Party, various Native American tribes and civil rights groups by determining the laws unconstitutional.

According to the 125-page opinion, H.B. 176 would have ended Election Day registration by restricting access to absentee ballots, while H.B. 530 required the secretary of state to adopt a rule banning absentee ballot collection on that day.

H.B. 176 also changed the state's voter registration deadline from the close of polls on Election Day to noon the day prior, the opinion said, while S.B. 169 revised rules to require students to show additional documentation in addition to their school identification to vote.

The plaintiffs include the Montana Democratic Party, nonprofits Western Native Voice and Montana Youth Action, as well as the Blackfeet Nation, the Confederated Salish and Kootenai Tribes, the Fort Belknap Indian Community and the Northern Cheyenne Tribe.

The groups and tribes sued Jacobsen's office in May 2021 in separate complaints in response to the state's passage of the bills, alleging they violated the Montana Constitution, while seeking an injunction to stop the secretary of state from enforcing the laws. The courts eventually consolidated the lawsuits.

In the 4-3 ruling on Wednesday, the majority opinion written by Justice Mike McGrath and signed by Justices Laurie McKinnon, Ingrid Gustafson and Jim Shea, heavily relied on an interpretation that Montana's Constitution guarantees stronger voter protections than the U.S. Constitution.

"This court can diverge from the minimal protections offered by the United States Constitution when the Montana Constitution clearly affords greater protection — or even where the provision is nearly identical," Justice McGrath wrote.

The state's high court, Justice McGrath said, will undoubtedly continue to "whistle-down legislative enactments that exceed the clear constitutional limitations on the exclusive power and authority of the Legislature."

However, in doing so, it's important to preserve the "sacrosanct separation of powers" dictated by the state's Constitution "however distasteful in the political firestorm of the day,"

Pointing to evidence during the district's court's nine-day trial in the litigation, Justice McGrath said the laws place an undue burden on the state's residents right to vote, and in many instances, threatened to disenfranchise young, Native American voters, in particular.

"The Montana Constitution has contained a clear, explicit, unequivocal, and strong protection of the right to vote since before statehood: 'All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."

Jonathan Topaz, a staff attorney with the ACLU's Voting Rights Project that helped to represent the plaintiffs, described Wednesday's opinion as a great victory for their clients and all Native Americans in Montana that are simply seeking the ability to exercise their fundamental rights to vote.

"Once again, courts have struck down the Montana Legislature's attempts to unconstitutionally burden the constitutional rights of Native Americans across the state. We will continue to fight for Native American voters in Montana and across the country to preserve their fundamental, constitutional right to vote," Topaz said.

Dissenting in part in the ruling were Justices Beth Barker, Dirk Sandefur and Jim Rice, who said that the plaintiffs did not meet the burden to establish the facial invalidity of H.B. 506.

The bill makes clear, they said, that although a person may register to vote if they will be 18 on or before Election Day, they may not receive or cast a ballot until they meet the residence and age requirement."

"The court acknowledges that this law does not interfere with the right to vote, as by its terms it prevents no one from voting and by its operation did not — according to any record evidence — prevent anyone from voting," Justice Barker wrote in her partial dissent.

Courts have no constitutional power or authority to act as a super-legislature that second-guesses "the wisdom, need and propriety" of legislative enactments that may touch upon economic problems, business affairs or social conditions, the dissenting justices said.

However, in "an unprecedented exercise of unrestrained judicial power overriding public policy determinations made by the Legislature in the exercise of its constitutional discretion," the majority panel said it was striking down the legislative enactments "on the most dubiously transparent of constitutional grounds."

A representative from Jacobsen's office couldn't immediately be reached for comment Thursday.

Montana Secretary of State Christi Jacobsen is represented by the state's Office of the Attorney General, Dale Schowengerdt of Landmark Law PLLC and Leonard H. Smith, Mac Morris, E. Lars Phillips and John Semmens of Crowley Fleck PLLP.

The Montana Democratic Party is represented by Peter Michael Meloy of Meloy Law Firm, Matthew Gordon of Perkins Coie LLP and Abha Khanna, Jonathan P. Hawley and Marilyn Gabriela Robb of the Elias Law Group LLP.

Western Native Voice, Montana Native Vote, the Blackfeet Nation, the Confederated Salish and Kootenai Tribes, the Fort Belknap Indian Community and the Northern Cheyenne Tribe are represented by Alex Rate and Akilah Deernose of the ACLU of Montana, Jacqueline De Leon and Samantha Kelty of the Native American Rights Fund, Theresa J. Lee of the Harvard Law School Election Law Clinic and Jonathan Topaz of the ACLU of New York.

The Montana Youth Action, Forward Montana Foundation and Montana Public Interest Research Group are represented by Rylee Sommers-Flanagan of Upper Seven Law.

The case is Montana Democratic Party et al. v. Jacobsen, case number DA 22-0667, in the Montana Supreme Court.