Mont. Democratic Party v. Jacobsen
| Citation | 2022 MT 184 |
| Decision Date | 21 September 2022 |
| Docket Number | DA 22-0172 |
| Parties | MONTANA DEMOCRATIC PARTY and MITCH BOHN; and WESTERN NATIVE VOICE, MONTANA NATIVE VOTE, BLACKFEET NATION, CONFEDERATED SALISH AND KOOTENAI TRIBES, FORT BELKNAP INDIAN COMMUNITY, and NORTHERN CHEYENNE TRIBE; and 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 | United States State Supreme Court of Montana |
Submitted on Briefs: July 13, 2022.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 21-0451 Honorable Michael G. Moses, Presiding Judge.
For Appellant: Dale Schowengerdt, John M. Semmens, Crowley Fleck PLLP.
Leonard H. Smith, David F. Knobel, Crowley Fleck PLLP.
Ian McIntosh, William McIntosh Morris, E. Lars Phillips, Crowley Fleck PLLP.
Austin Knudsen, Montana Attorney General, David M.S. Dewhirst Solicitor General, Kathleen Lynn Smithgall, Assistant Solicitor General.
Austin Markus James, Chief Legal Counsel, Office of the Secretary of State.
For Appellees Montana Democratic Party and Mitch Bohn: Matthew P Gordon, Perkins Coie LLP.
Peter Michael Meloy, Meloy Law Firm.
John C. Heenan, Heenan & Cook PLLC
Henry J. Brewster, Jonathan P. Hawley, Elias Law Group LLP, Washington, District of Columbia.
For Appellees Montana Youth Action, Forward Montana Foundation, and Montana Public Interest Research Group: Rylee Sommers-Flanagan, Upper Seven Law, Helena, Montana Ryan Aikin, Aikin Law Office, PLLC.
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 Lane, ACLU of Montana.
Alora Thomas-Lundborg, Jonathan Topaz, Dale Ho, ACLU, New York.
Samantha Kelty, Native American Rights Fund, Washington, District of Columbia.
Jacqueline De Leon, Matthew Campbell, Native American Rights Fund, Boulder, Colorado.
Theresa J. Lee, Election Law Clinic, Harvard Law School, Cambridge, Massachusetts
For Amicus Restoring Integrity &Trust in Elections: Rob Cameron, Jackson, Murdo &Grant, P.C.
Brett W. Johnson, Tracy A. Olson, Law Office of Snell & Wilmer.
¶1 Montana Secretary of State Christi Jacobsen appeals from the preliminary injunction entered by the Thirteenth Judicial District Court, Yellowstone County, prohibiting her from enforcing two election laws enacted during the 2021 Montana Legislative Session, pending final resolution of constitutional challenges brought by Plaintiffs and Appellees. Senate Bill 169 (SB 169) modified voter registration requirements by eliminating student identification as a sufficient form of identification for voting purposes without additional supporting documentation, and House Bill 176 (HB 176) eliminated Election Day Registration (EDR) by moving the deadline to register to vote during late registration to noon the day before the election.
¶2 The following issue is raised:
Did the District Court manifestly abuse its discretion in preliminarily enjoining Senate Bill 169 and House Bill 176?
¶3 Applying our settled standards for review of preliminary injunctions, we affirm.
¶4 During the 2021 Montana Legislative Session, the Legislature passed House Bill 176, House Bill 530, Senate Bill 169, and House Bill 506. The Governor signed these bills into law in April 2021. Plaintiffs and Appellees Montana Democratic Party and Mitch Bohn (MDP), Western Native Voice, Montana Native Vote, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, and Northern Cheyenne Tribe (WNV), and Montana Youth Action, Forward Montana Foundation, and Montana Public Interest Research Group (MYA), (collectively "Appellees"), initiated individual legal challenges to these four election laws in the district courts asserting state constitutional violations, and sought preliminary injunctive relief to enjoin the Secretary from enforcing the laws pending a trial on the merits.[1] This appeal involves only HB 176 and SB 169.
¶5 Montana law has required voters to present some form of voter identification for in-person participation in state elections since 2003. Section 13-13-114(1)(a), MCA (2003). Prior to enactment of SB 169, 2021 Mont. Laws ch. 254, § 2, Montanans could demonstrate their identity at the polls by presenting either a photo identification, "including but not limited to a valid driver's license, a school district or postsecondary education photo identification, or a tribal photo identification," or "a current utility bill, bank statement, paycheck, notice of confirmation of voter registration . . . government check, or other government document that shows the [voter's] name and current address." Section 13-13-114(1)(a), MCA (2019). Under SB 169, voter identification is bifurcated into two forms of identification. Primary[2] forms of identification are: "a Montana driver's license, Montana state identification card . . . military identification card, tribal photo identification card, United States passport, or Montana concealed carry permit."[3] Section 13-13-114(1)(a)(i), MCA.[4] Primary forms of identification are sufficient by themselves to establish identity-if an individual presents a primary form of identification, no further documentation is required to receive a regular ballot to vote. Section 13-13-114(1)(b), MCA.[5]
¶6 To use a photo ID that does not appear on the list of primary forms of identification, now including student ID cards, a voter must also present "a current utility bill, bank statement, paycheck, government check, or other government document" showing the voter's name and current address. Section 13-13-114(1)(a)(ii)(A), MCA. See § 13-13-114(1)(a)(ii)(B), MCA (secondary forms of identification that may not be used on a stand-alone basis include "photo identification that shows the [voter's] name, including but not limited to a school district or postsecondary education photo identification"). SB 169 includes a process by which voters unable to comply with ID requirements may cast a provisional ballot if they can present an identification document[6] citizenship and Montana residency under the penalty of perjury." Mont. Sec'y of State, Notice of Amendment, at 170, Jan. 18, 2022, available at https://sosmt.gov/arm/register/. and execute a declaration stating the voter has a qualifying "reasonable impediment to meeting the identification requirements." Section 13-15-107(3)(a), MCA.[7]
¶7 A primary effect of SB 169 is that student ID cards, presented alone, are no longer sufficient to establish identification for participation in state elections. Instead, voters wishing to use a student ID must also present an additional identification document as defined in § 13-13-114(1)(a)(ii)(A), MCA, to establish identification.
¶8 As to HB 176, Election Day Registration was adopted in Montana in 2005. Section 13-2-304(1)(a), MCA (2005). EDR enabled Montana voters to both register to vote and cast a ballot on election day. Section 13-2-304(1)(a), MCA (2005) ("An elector may register or change the elector's voter registration information after the close of regular registration . . . and vote in the election if the election administrator . . . receives and verifies the elector's voter registration information prior to the close of the polls on election day."). HB 176 eliminated EDR, moving the deadline for late registration from election day to noon the day before the election. Section 13-2-304(1)(a), MCA (2021 Mont. Laws ch. 244, § 2).
¶9 The District Court consolidated the cases and, after conducting a hearing on March 10, 2022, issued its Findings of Fact, Conclusions of Law, and Order ("Order") granting a preliminary injunction that "restrained and prohibited" the Secretary from enforcing the challenged laws, pending the resolution of Appellees' request for a permanent injunction. The District Court applied strict scrutiny review in concluding Appellees made out prima facie cases that the laws at issue in this appeal, Section 2 of SB 169 and the entirety of HB 176, unconstitutionally burdened Appellees' fundamental right to vote and right to equal protection. The court further concluded Appellees would suffer irreparable harm through the loss of constitutional rights if SB 169 and HB 176 remained in effect during the pendency of the litigation.
¶10 The Secretary appealed the preliminary injunction and moved the District Court for a stay of the Order under M. R. App. P. 22(1), which the court denied. She then moved this Court for a stay under Rule 22(2)(a) pending appeal of the preliminary injunction, which this Court granted. Mont. Democratic Party v. Jacobsen, No. DA 22-0172, Order (May 17, 2022). The Secretary appeals the District Court's Order only with regard to HB 176 and Section 2 of SB 169.
¶11 We review a district court's grant or denial of a preliminary injunction for a manifest abuse of discretion. Driscoll v. Stapleton, 2020 MT 247, ¶ 12, 401 Mont. 405, 473 P.3d 386 (citing Davis v. Westphal 2017 MT 276, ¶ 10, 389 Mont. 251, 405 P.3d 73). A manifest abuse of discretion is one that is "'obvious, evident, or unmistakable.'" Driscoll, ¶ 12 (quoting Weems v State, 2019 MT 98, ¶ 7, 395 Mont. 350, 440 P.3d 4). See also Inre Guardianship &Conservatorship of A.M.M., 2016 MT 213, ¶ 10, 384 Mont. 413, 380 P.3d 736 (); Planned Parenthood of Mont. v. State, 2022 MT 157, ¶ 5, 409 Mont. 378, P.3d ...
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