Mont. Democratic Party v. Jacobsen

• Docket Number: DA 22-0667
• Decision Date: 27 March 2024
• Citation: Mont. Democratic Party v. Jacobsen, 545 P.3d 1074 (Mont. 2024)
• Parties: MONTANA DEMOCRATIC PARTY and Mitch Bohn, Western Native Voice, Montana Native Vote, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, and Northern Cheyenne Tribe, Montana Youth Action, Forward Montana Foundation, and Montana Public Interest Research Group, Plaintiffs and Appellees, v. Christi JACOBSEN, in her official capacity as Montana Secretary of State, Defendant and Appellant.
• Court: Montana Supreme Court

545 P.3d 1074

2024 MT 66

MONTANA DEMOCRATIC PARTY and Mitch Bohn, Western Native Voice, Montana Native Vote, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, and Northern Cheyenne Tribe, Montana Youth Action, Forward Montana Foundation, and Montana Public Interest Research Group, Plaintiffs and Appellees,

v.Christi JACOBSEN, in her official capacity as Montana Secretary of State, Defendant and Appellant.

DA 22-0667

Supreme Court of Montana.

Submitted on Briefs: October 25, 2023

Decided: March 27, 2024

West Codenotes

Held Unconstitutional

Mont. Code Ann. §§ 13-2-205(2),13-2-304,13-13-114

Recognized as Unconstitutional

Mont. Code Ann. §§ 13-35-242,13-35-701,13-35-702,13-35-703,13-35-705

Prior Version Recognized as Unconstitutional

Mont. Code Ann. § 13-35-704

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, CauseNo. DV 21-0451, Honorable Michael G. Moses, Presiding Judge

For Appellant: Dale Schowengerdt, Landmark Law, PLLC, Helena, Montana, Leonard H. Smith, Crowley Fleck PLLP, Billings, Montana, Mac Morris, E. Lars Phillips, Crowley Fleck, PLLP, Bozeman, Montana, John Semmens, Crowley Fleck PLLP, Helena, Montana, Christian Corrigan, Solicitor General, Office of the Attorney General, Helena, Montana

For Appellees Montana Democratic Party and Mitch Bohn: Peter Michael Meloy, Meloy Law Firm, Helena, Montana, Matthew Gordon, Perkins Coie LLP, Seattle, Washington, Abha Khanna, Jonathan P. Hawley, Elias Law Group, LLP, Seattle, Washington, Marilyn Gabriela Robb, Elias Law Group LLP, Washington, District of Columbia

For Appellees Western Native Voice, Montana Native Vote, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, and Northern Cheyenne Tribe: Alex Rate, Akilah Deernose, ACLU of Montana, Missoula, Montana, Jacqueline De Leon, Native American Rights Fund, Boulder, Colorado, Samantha Kelty, Native American Rights Fund, Washington, District of Columbia, Theresa J. Lee, Election Law Clinic, Harvard Law School, Cambridge, Massachusetts, Jonathan Topaz, American Civil Liberties Union, New York, New York

For Appellees Montana Youth Action, Forward Montana Foundation, and Montana Public Interest Research Group: Rylee Sommers-Flanagan, Niki Zupanic, Upper Seven Law, Helena, Montana

For Amicus Restoring Integrity & Trust in Elections: Rob Cameron, Jackson, Murdo & Grant, P.C., Helena, Montana, Patrick F. Philbin, John V. Coghlan, Elias George Cipollone O’Brien Annaguey LLP, Washington, District of Columbia

For Amicus Lawyers Democracy Fund: Daniel Stusek, Benchmark Consulting, Inc., Helena, Montana

For Amicus Montana Federation of Public Employees: Raph Graybill, Graybill Law Firm, PC, Great Falls, Montana

For Amicus Scholars of State Constitutions and Election Law: Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana

Chief Justice Mike McGrathdelivered the Opinion of the Court.

¶1 Montana Secretary of State Christi Jacobsen(Secretary) appeals from a July 27, 2022 order of the Thirteenth Judicial District Court, granting summary judgment on plaintiffs’ and appellees’ claim that House Bill 506 (HB 506) is unconstitutional.The Secretary also appeals from a September 30, 2022 order finding House Bill 176 (HB 176), House Bill 530, § 2(HB 530), and Senate Bill 169, § 2(SB 169) unconstitutional.The challenged portion of HB 506 amended § 13-2-205, MCA,¹ which restricted access to absentee ballots to voters currently qualified to vote, where before, those who would be qualified to vote by election day could access an absentee ballot during the early voting period.See2021 Mont. Laws ch. 531.The challenged portion of HB 176 amended § 13-2-304, MCA, which changed the voter registration deadline from the close of polls on election day to noon the day before the election.See2021 Mont. Laws ch. 244.HB 530, § 2, chaptered as 2021 Mont. Laws ch. 534, required the Secretary to adopt administrative rules banning paid absentee ballot collection.Finally, the challenged section of SB 169 amended § 13-13-114, MCA, which revised voter ID requirements such that those wishing to vote with a Montana student ID had to show additional supporting documentation.See2021 Mont. Laws. ch. 254.

¶2We restate the issues on appeal as follows:

Issue One: Did the District Court err in finding § 13-2-205(2), MCA, unconstitutional?(HB 506)

Issue Two: Did the District Court err in finding § 13-2-304, MCA, unconstitutional?(HB 176)

Issue Three: Did the District Court err in finding HB 530, § 2, unconstitutional?

Issue Four: Did the District Court err in finding § 13-13-114, MCA, unconstitutional?(SB 169)

FACTUAL AND PROCEDURAL BACKGROUND

¶3The Legislature passed HB 506, HB 176, HB 530, and SB 169 during the 2021 Montana legislative session.Plaintiffs and Appellees Montana Democratic Party, Mitch Bohn, Western Native Voice, Montana Native Vote, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, Northern Cheyenne Tribe, Montana Youth Action, Forward Montana Foundation, and Montana Public Interest Research Group (Appellees), each challenged one or more of these four laws.

¶4The District Court consolidated the cases and conducted a nine-day trial, consisting of both factual and expert witness testimony.Ultimately, the District Court determined that each of the challenged statutes were unconstitutional.We affirm.

HB 506

¶5 The Montana Constitution requires a qualified elector to be 18 years old or older.Mont. Const. art. IV, § 2.Prior to the enactment of HB 506, someone who was not yet 18, but who would be 18 by election day, was eligible to register to vote.Section 13-2-205,MCA(2019).Montana law also allows electors to receive and vote with an absentee ballot, as relevant, up to 30 days before an election.Sections 13-13-201, -205, MCA.But in no case are those ballots counted until the day of or day before election day.Section 13-13-241(7)—(8), MCA.HB 506 prohibited an absentee ballot from being issued to an elector who was not yet 18, though they would be 18 by election day.Section 13-2-205(2), MCA.

HB 176

¶6 Montana enacted election day registration in 2005, which allowed a voter to both register to vote and vote on election day.Section 13-2-304(1)(a), MCA (2005 Mont. Laws ch. 286, § 1).Election day registration has become wildly popular, with over 70,000 Montanans utilizing it since 2006.In a 2014 referendum, Montana voters rejected eliminating election day registration by a 14-point margin.HB 176 eliminated election day registration for all but a select category of people² and pushed the registration deadline back to noon the day before the election.Section 13-2-304(1)(a), MCA.

HB 530,§ 2

¶7 HB 530, § 2, instructed the Secretary to promulgate rules that would not allow anyone to accept a "pecuniary benefit" to assist a voter by returning their ballot for them (among other ballot assistance activities).See2021 Mont. Laws ch. 534, § 2.It added a civil penalty of $100 for each ballot collected in violation of the rule.Appellees provided evidence that many groups, including Native Americans, people with disabilities, and other voters, rely on organized groups to help them deliver their voted ballots to election officials.

SB 169

¶8 Prior to the enactment of SB 169, a Montana elector who wished to vote at the polls needed to show a photo ID (including a driver’s license or student ID) that had the elector’s name and photo, or, among other things, a current utility bill, bank statement, or paycheck that had their name and address on it.Section 13-13-114(1),MCA(2019), The purpose of showing ID at the polling location is to check the name and photo on the ID to verify the person is who they say they are and that they are registered to vote.The question of whether a person is actually eligible to vote under Montana law is a function of the registration process.See§§ 13-2-110, -208, MCA.SB 169 changed these requirements by listing certain acceptable "primary" photo IDs that would suffice by themselves, such as a Montana driver’s license, U.S. passport, or a Montana concealed carry permit.Section 13-13-114(1)(a)(i), MCA.Other IDs, such as postsecondary education photo IDs, were moved into a class of "secondary" IDs that required an elector to show that ID plus an additional document such as a utility bill, bank statement, or government document that lists the person’s current name and address.Section 13-13-114(1)(a)(ii), MCA.³

¶9The parties filed cross motions for summary judgment on each of the Bills.On July 27, 2022, the District Court granted appellees’ motion for summary judgment on HB 506.It found that § 13-2-205(2), MCA, severely interfered with the right to vote for the specific subgroup of people who would turn 18 within 30 days before an election by taking away their ability to vote absentee as all other voters in Montana are eligible to do.The court therefore applied a strict scrutiny analysis and found that § 13-2-205(2), MCA, (HB 506) was unconstitutional as it interfered with the fundamental right to vote.The District Court denied summary judgment on the other three Bills because issues of fact remained.

¶10The court conducted the nine-day trial on the remaining three Bills.On September 30, 2022, the court ruled that the other three Bills were unconstitutional.It found § 13-2-304, MCA, (HB 176) unconstitutional under the right to vote and equal protection.The court found HB 530, § 2, unconstitutional under the right to vote, equal protection, freedom of speech, due process, and as an improper delegation of legislative power.Finally, the court found that § 13-13-114, MCA, (SB 169) did not implicate the right to vote, but that it was unconstitutional under an equal protection rational basis analysis.The Secretary appeals.

STANDARD OF REVIEW

[1–6]¶11 The constitutionality of a statute is a question of law, and we...