Montana attorneys argue over block on new voter requirements
Blair Miller
(Daily Montanan) State attorneys responded to a request for a preliminary injunction that would block new Montana voter registration requirements already in effect by telling a judge the additional requirements only strengthen existing law and saying the plaintiffs in the case took too long to ask for an injunction if they were worried about the law’s effects.
The response was filed Friday in federal court in Helena on behalf of Attorney General Austin Knudsen, Secretary of State Christi Jacobsen and Commissioner of Political Practices Chris Gallus after the plaintiffs in the case, Montana Public Interest Research Group and Montana Federation of Public Employees, asked for a preliminary injunction to block House Bill 892 on Nov. 6.
Attorneys for MontPIRG and MFPE argued the new law passed under the bill sponsored by Rep. Lyn Hellegaard, R-Missoula, is so vague and broad that it violates the First and Fourteenth amendments to the U.S. Constitution and chills Montanans’ right to vote.
The organizations’ attorneys also argued the bill violates their abilities to register new voters in Montana and potentially subjects their members to criminal penalties if they violate the law.
HB 892 added qualifications to Montana’s voting laws, which already prohibited anyone from voting more than once in an election. Under the bill, which took effect May 22, language was added that also prohibited people from voting “in both this state and another state or territory in the same or equivalent elections, except in a special district election.”
The new language also said that a person in Montana cannot “purposefully remain registered” to vote in another state while being registered in Montana and put a new requirement on voter registration applications in which people must provide information on that previous registration.
Violations of the law could lead to up to 18 months in prison and fines up to $5,000.
“Double voting in Montana is unlawful, and safeguards already exist to deter the practice,” attorneys for MontPIRG and MFPE had said in their ask for the injunction. “The challenged provisions of HB 892 serve no function other than to discourage otherwise-eligible voters from participating in the democratic process.”
But in their response Friday, attorneys for the Attorney General’s Office say the groups are making much ado about nothing.
“Plaintiffs ignore Montana’s common-sense, long-standing practice to invent a right to maintain multiple residences and multiple voter registrations. Plaintiffs ignore HB 892’s plain text and decades of established precedent defining criminal mental states in a quest for vagueness,” the filing from the state defendants says. “Plaintiffs likewise ignore that, to the extent they register voters, they have done so under a functionally identical regime for years.”
The response says several other states under the 9th Circuit Court of Appeals, as is Montana, also request prior voter registration information, that the updated law ensures voters are only eligible in one state, and includes a sworn affidavit from Deputy Chief Elections Officer Dana Corson that says he is “aware of past instances in Montana where voters appeared to have voted in the same election twice.”
His affidavit is supplemented by a redacted exhibit that Corson said the Secretary of State’s Office received — it is stamped with the logo of the Public Interest Legal Foundation, a right-wing group that is working with other groups to cut down voter access in some states, The Guardian reported in April — which claims to show 14 Montanans “who voted in two different states in the 2020 election.”
Corson’s affidavit says the list shows voters “who received ballots and at least one occasion voted ballots using the same mailing address from two different states.”
Corson testified he had cross-verified the information with the other states involved to confirm it was the same voter and that ballots were cast in both states, then forwarded the list to the Federal Bureau of Investigation. Corson said the FBI was investigating.
The response says that any instance of double voting could greatly affect the outcome of any election, noting a recent Missoula City Council race that ended in a tie after a recount.
“Ultimately it is clear that the occurrence, significance, and impact of double voting are not merely imagined as Plaintiffs seem to suggest,” the state’s attorneys wrote in the response.
They also argue that the plaintiffs can meet none of the elements needed for a preliminary injunction, including that they will face irreparable harm absent one or that an injunction is in the public interest.
They say the state had already processed more than 17,000 voter registration applications since the new law went into effect, that elections have already taken place, and that the Secretary of State has not received a single complaint about the additional requirements.
“This significantly undercuts plaintiffs’ claim that HB 892 has somehow prevented or otherwise affected their ability to help register voters,” the state’s attorneys said.
Furthermore, they say the risk of prosecution under the changes to the law is merely “speculative hypotheticals” and that a voter would purposefully have to leave their prior registration off the application in order to face prosecution. The state’s attorneys said the plaintiffs show “an ignorance of basic concepts of criminal law” and that HB 892 has no chilling effect on voters or voter registration.
“Ultimately, HB 892 is straightforward and common-sense legislation. It simply requires a registrant to complete the Voter Registration Application accurately and honestly to the best of their knowledge, and the SOS will cancel and identified prior registration for them,” the response says. “A person of ordinary intelligence can easily understand what is required of them in this context.”
Lastly, the state’s attorneys say that since HB 892 is already law, it is the status quo, and since thousands of people have already registered to vote under it and participated in elections, they question why it took the organizations until October to file suit and November to ask for a preliminary injunction. They say the plaintiffs did not explain their delay, and that the state’s interests in protecting the integrity of elections outweighs those of the plaintiffs.
“If the court were to enjoin HB 892, it is the State of Montana who will actually suffer irreparable harm by being prevented from implementing legislation directed at preventing fraud and maintaining public confidence in fair elections,” the response says.
Earlier in the case, the judge set Feb. 5 deadlines for pretrial statements and discovery plans and set a pretrial conference in the case for Feb. 12. The judge has yet to rule on a motion to intervene in the case from the Montana Republican Party or Republican National Committee.
A second lawsuit against Knudsen, Jacobsen and Gallus challenging HB 892 was also filed last month in Gallatin County District Court on behalf of the League of Women Voters of Montana.