Natalie Hanson

(CN) — A split Montana Supreme Court panel has upheld a block of the four recent election laws that restrict voter access, finding them unconstitutional.

The judges affirmed the ruling in a consolidated case brought by groups like the Montana Democratic Party, several Native American tribes and Montana Youth Action seeking to overturn the laws.

Chief Justice Mike McGrath in a 63-page ruling issued Wednesday called the Legislature’s pushback of the voter registration deadline from Election Day to noon the day before — while blocking paid absentee ballot collectors and using a Montana university student ID as a voter identification — facially unconstitutional.

McGrath found that while the U.S. Constitution contains no explicit protection of the right to vote, the courts have held that the right “is a bulwark for other basic civil and political rights.” He said that eliminating Election Day registration interferes with the fundamental right to vote and disenfranchises more than 70,000 Montanans.

“This is like arguing that because absentee voting was once not allowed, it would not interfere with the electorate’s right to vote to eliminate it today — even though three-quarters of voters in Montana now utilize it to vote,” McGrath wrote.

He affirmed that House Bill 530 takes away the only option to vote for many Native Americans living on reservations. Native voters disproportionately rely on ballot collection to vote due to living in remote locations and facing a history of discrimination around voting. Western Native Voice, a nonprofit working to increase Native American participation in elections, said that many people living on reservations have a hard time making it to a polling place to deliver a mail-in ballot.

“Many electors reside in remote areas and have long distances to polling places or post offices,” McGrath wrote. “Many do not have mail service to their homes.”

The judge also said that excluding student IDs from the list of acceptable photo IDs “imposes a burden on student voting.”

Justice Ingrid Gustafson, while concurring along with Justices Laurie McKinnon and James Jermiah Shea, said that she did not agree with the level of scrutiny McGrath used to determine whether restricting voters from receiving or submitting an absentee ballot was constitutional, when nearly 75% of 2018 voters used absentee ballots.

“I would conclude the total or near total elimination of voting options for the subclass impermissibly interferes with the right to vote and is thus subject to strict scrutiny,” Gustafson said.

Justice Beth Baker also wrote to dissent in part against the finding on the absentee ballot rule change, saying it would impose “an extremely minimal burden.”

“The new law affects a very narrow subset of potential voters — those who turn 18 within the month before an election—and removes their absentee-voting option for the single election for which the voter is not qualified to cast a ballot prior to the mailing of absentee ballots,” Baker said.

Justice Dirk Sandefur dissented alongside Justice Jim Rice, calling the majority’s decision “an unprecedented exercise of unrestrained judicial power overriding public policy determinations made by the Legislature in the exercise of its constitutional discretion.”

Sandefur said the majority was wrong in finding a guaranteed right to vote, or to infer that the country’s founders intended the Montana Constitution to provide greater protections of that right than the U.S Constitution. He said the majority acknowledged that the protection of the fundamental right to vote is manifestly implicit in the Constitution, and "every bit as broad and strong" as the protections in Montana's constitution.

He criticized the majority for rejecting the state’s position that other authorized forms of voter ID are subject to more rigorous identification verification standards than university IDs.

“Only recently, this court has correctly chided the Legislature to stay in its own well-defined lane of constitutional authority,” Sandefur wrote. “The precious distributed-powers constitutional form of government that the good citizens of this state have chosen to live under since 1889 will survive and be well-served only if we do the same.”

Attorneys for the plaintiffs did not immediately respond to requests for comment.

Richie Melby, representing Montana's secretary of state, called the majority opinion a result of "faulty constitutional analysis."

"The court's result-driven approach to judicial activism in striking down common sense voting laws designed to be as highly acceptable and secure as possible defies constitutional norms and will inevitably stand on the wrong side of legal history," Melby said.

Yellowstone County District Judge Michael Moses blocked the four laws in an April 2022 ruling. Republican lawmakers in Montana, which have controlled both houses in the Legislature for more than 10 years, have said the laws were intended to combat “voter fraud.”