Montana Supreme Court says no to Election Day voter registration

Under an order issued Tuesday by the Montana Supreme Court, Election Day voter registration will once again be prohibited in the state. The order overturned a district court injunction from March that blocked portions of four new election administration laws affecting voter identification requirements, ballot collection and voter registration.

Montana Secretary of State Christi Jacobsen had requested a stay from the state’s high court earlier this spring as part of an ongoing lawsuit involving the four laws passed by Republican legislators in 2021. The plaintiffs in that case include the Montana Democratic Party, Western Native Voice, Montana Youth Action and a coalition of other Indigenous and voting rights groups, all of which have challenged the laws as unconstitutionally burdensome to voters. Jacobsen, a Republican, is the defendant, and was an outspoken supporter of the laws during the 2021 session.

“I am grateful that the Supreme Court recognized the importance of orderly, safe, and secure elections,” Jacobsen said Tuesday in an email statement responding to the court’s action.

In response to a request for comment Tuesday, Montana Democratic Party Executive Director Sheila Hogan issued a statement as well: “We strongly encourage Montanans to register and vote early for this primary election.”

The Supreme Court’s stay is the latest in a series of abrupt changes to Montana election law arising from the lawsuit. The earlier injunction, issued by Yellowstone County District Court Judge Michael Moses on March 6, reactivated Election Day voter registration in time for the May school board election season. Now the Supreme Court’s order — signed by justices Beth Baker, Dirk Sandefur, Jim Rice and Jim Shea — will require prospective voters in the upcoming 2022 primary to register before noon the day before Election Day, as established in House Bill 176. Voters casting their ballots at the polls will also now be required to adhere to new voter identification requirements laid out in Senate Bill 169.

In granting Jacobsen’s request, the court acknowledged that Montanans will experience a degree of voter confusion and disruption of the election process whether the new laws remained blocked or not. However, the supporting justices wrote that, based on the findings of a previous lawsuit involving Montana election law, the status quo would be to return to the laws that were in effect during the 2021 municipal elections — in other words, the laws passed by the 2021 Montana Legislature.

“We place greater weight on the fact that elections have actually been conducted under the statutes as enacted by SB 169 and HB 176 — elections that a large portion of Montana voters participated in,” the order read. “Staying a preliminary injunction, which was not in effect during the 2021 elections, means that voters will continue to operate under the laws that have been in effect for over a year at this point.”

The Supreme Court’s order affects only the district court’s action in blocking SB 169 and HB 176. Portions of two other voting laws under challenge in the lawsuit — one barring paid ballot collection and another prohibiting county election officials from mailing ballots to voters who are not yet eligible to vote but will be on Election Day — were not included in Jacobsen’s appeal and remain blocked by the district court’s injunction.